Dana Herra Nov. 6, 2015, 10:57am

A widow whose husband’s asbestos-related illness manifested more than 40 years after his last exposure cannot collect damages from the employer responsible for the exposure, the Illinois Supreme Court has ruled.

In a split decision released Nov. 4, the court reversed the decision of a state appeals court, which had itself reversed the decision of a Cook County Circuit Court judge that the Workers’ Occupational Diseases Act, a companion to the Workers’ Compensation Act, does not cover claims filed more than 25 years after the last day of exposure to the disease-causing agent.

Chief Justice Rita B. Garman and justices Mary Jane Theis, Lloyd A. Karmeier and Anne M. Burke ruled in favor of Ferro Engineering, the company that employed James Folta from 1966 to 1970 as a shipping clerk and product tester.

Forty-one years later, Folta was diagnosed with mesothelioma, which he and his counsel alleged was likely caused by exposure to asbestos during his time at Ferro. He filed a civil action against 15 defendants, including Ferro. The circuit court granted Ferro’s motion to dismiss, based on the 25-year limitation provided in the Workers’ Occupational Diseases Act. While the litigation was pending, Folta died, and his wife, Ellen Folta, became the plaintiff in the case. In her appeal of the circuit court’s dismissal, Ellen Folta argued that the law unfairly disadvantages victims of mesothelioma, which typically takes 30 to 50 years to manifest.

An appellate court reversed the circuit court’s decision, citing case law that found an injured employee may bring a common-law action against his employer if the injury is “not compensable” under the act. Because James Folta’s injury did not manifest before the time of repose expired, the appellate court ruled that it was not compensable, because he literally had no opportunity to file for compensation.

In a dissenting opinion, Supreme Court justices Charles E. Freeman and Thomas L. Kilbride agreed whole-heartedly with the appellate court.

“Plaintiff never had the right to file an application for compensation under either of these [Workers’ Compensation] acts, whose time limitations expired long before plaintiff’s mesothelioma was manifest,” Freeman wrote in the dissenting opinion. “Through no fault of his own, plaintiff never had an opportunity to seek compensation under the Act.”

The dissenting justices had a different view of the term “not compensable” than the majority. In the majority opinion, Theis wrote that the justices determined from case law that whether an injury is compensable under the act depends on the nature of the injury, not whether an individual had the opportunity to collect compensation. The court found lawmakers’ intentions were clear in establishing a 25-year time limit for claims.

“We are cognizant of the harsh result in this case,” Theis wrote. “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.”

The dissenting judges wrote that the court used cases with different circumstances to form the basis of its decision, and that the justices failed to take into consideration the intent of the workers’ compensation legislation, defined as “a humane law of a remedial nature whose fundamental purpose is to provide employees and their dependents prompt, sure and definite compensation.”

“In my view, the majority’s interpretation cannot be the law,” Freeman wrote. “The majority’s interpretation runs directly counter to the acts’ purpose.”

Justice Robert R. Thomas took no part in the court’s decision.

On appeal, Folta had been represented by attorney Nicholas J. Vogelzang, of Connelly & Vogelzang, of Chicago, and attorneys Donald P. Blydenburgh and Jerome H. Block, of Levy Phillips & Konigsberg, of New York.

Ferro was represented by Joshua G. Vincent and Craig T. Liljestrand, of Hinshaw Culbertson, of Chicago.

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Organizations in this Story

Hinshaw & Culbertson LLP
215 South Monroe St. - Second Floor
Chicago, IL 60601

Connelly & Vogelzang
218 N Jefferson St
Chicago, IL 60661

Levy Phillips and Konigsberg
800 Third Ave.
New York, NY 10022

Cook County Circuit Court
50 W Washington St
Chicago, IL 60602

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