Illinois: Tort Action Against Employer Not Barred Where Workers’ Comp Claim Was Time-Barred Before Employee Ever Learned of It

In a case of first impression, an Illinois appellate court, reversing a decision by a state trial court, has ruled that neither the exclusive remedy provisions of the Illinois Workers’ Compensation Act (“the Act”) nor those of the Workers’ Compensation Diseases Act (“the Diseases Act”) bar a former employee from maintaining a civil action against the former employer where the employee became aware he had contracted the occupational disease–here asbestosis–after the expiration of the statute of repose under those acts [Folta v. Ferro Eng’g, 2014 Ill. App. LEXIS 444 (June 27, 2014)]. The former employee, who was diagnosed with peritoneal mesothelioma 41 years after leaving the employ of Ferro Engineering, could not pursue an asbestos-related workers’ compensation claim because the claim was time-barred by the Act’s 25-year statute of repose for asbestos-related injuries and the three-year statute of repose for asbestos-related diseases under the Diseases Act. 

Plaintiff, citing Meerbrey v. Marshall Field & Co., Inc., 139 Ill. 2d 455, 467 (1990), argued that the exclusive remedy provisions did not bar the civil action, since the provisions do not apply to claims that are “not compensable under the Act.” Noting that other jurisdictions had allowed such civil actions to proceed under these circumstances and that defendant had not “pointed to any absurd or otherwise problematic consequences resulting therefrom,” the court held the tort action was not barred and further indicated its holding was “confined to the specific fact pattern” before the court: where an injured employee’s potential claim under the Act was time-barred before he or she ever learns of it, thus necessarily depriving him of any potential for compensation under the Act.

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