Folta v. Ferro Engineering

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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