Widow of Illinois Mesothelioma Victim Finds Herself with Catch–22

The widow of a worker who was diagnosed with mesothelioma some 40 years after his exposure to asbestos may not sue the former employer to recover damages since her exclusive remedy was within the Illinois Workers’ Compensation Act and/or the Illinois Workers’ Occupational Diseases Act, notwithstanding that any claim under either act was also barred because her husband’s condition manifested itself after the expiration of the Acts’ statutes of limitation, held a divided Illinois Supreme Court late last week [Folta v. Ferro Eng’g, 2015 IL 118070, 2015 Ill. LEXIS 1264 (Nov. 4, 2015)]. Reversing a lower appellate court, the majority of the Illinois Supreme Court said the core issue was whether the deceased worker’s mesothelioma was caused by his workplace exposure, not whether the worker or his widow had sufficient time to recover under Illinois workers’ compensation laws.

Folta’s widow had contended that requiring that a worker file a mesothelioma claim within 25 years of exposure violated the equal protection provision of Article I, § 2 and the “special legislation” bar in Article IV, § 13 of the Illinois Constitution. She argued that injured workers who suffer from occupational diseases with short latency periods and injured workers who suffer from occupational diseases with long latency periods were treated differently in terms of the right to bring an action for damages.

The majority disagreed. Distinguishing the instant case from Pathfinder Co. v. Industrial Comm’n, 62 Ill. 2d 556, 343 N.E.2d 913 (1976), Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237, 408 N.E.2d 198, 41 Ill. Dec. 776 (1980) and in Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 564 N.E.2d 1222, 151 Ill. Dec. 560 (1990), the majority said that whether an injury is compensable is related to whether the type of injury categorically fits within the purview of the Act, not whether there was an ability to recover benefits for a particular injury sustained by an employee.

The majority stressed that no “categorical” class had been denied a right to seek benefits. According to the majority, whether compensation benefits were awarded for an occupational disease depended upon the facts and circumstances of each particular case, based on proof as to when a disability manifested. The majority added that since 1956, the Court had held that despite limitations on the amount or type of recovery under the Act, the Act is the employee’s exclusive remedy for workplace injuries.

Justice Freeman, extensively quoting and citing Larson’s Workers’ Compensation Law, dissented.

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