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Worker who got mesothelioma 40 years after job caught in comp catch-22

Posted On: Nov. 4, 2015 12:00 AM CST

Workers compensation was the exclusive remedy for a man who developed asbestos-related mesothelioma more than a decade after a deadline had run out for seeking occupational disease-related benefits, a split Illinois Supreme Court ruled Wednesday in a case closely followed by employers and insurance industry groups.

James Folta worked as a shipping clerk and product tester for Ferro Engineering, a division of Cleveland-based On Marine Services Co., from 1966 to 1970, court records show. He was exposed to products containing asbestos during his employment at Ferro, and was diagnosed in May 2011 with mesothelioma.

Mr. Folta sued Ferro Engineering in Cook County, Illinois, circuit court in June 2011, court filings show. Mr. Folta accused Ferro Engineering of negligence in his civil complaint and sought to recover damages related to his mesothelioma.

Ferro Engineering moved to dismiss Mr. Folta's complaint, arguing that Illinois workers compensation law was the exclusive remedy for Mr. Folta's claims, records show. However, Mr. Folta argued in filings that workers comp exclusivity did not apply to his claim since Illinois workers comp law has a 25-year time limit for occupational disease claims, and he was diagnosed with mesothelioma 40 years after his last exposure to asbestos.

Mr. Folta died while the case was pending, and his widow amended Mr. Folta's complaint to include a wrongful death claim against Ferro Engineering, records show.

The Cook County circuit court granted summary judgment in favor of Ferro Engineering, finding that workers comp was the exclusive remedy for Mr. Folta's claims, records show. But the Illinois Court of Appeals reversed that decision in 2014, finding that Mr. Folta's illness was not compensable under Illinois workers comp law since his disease did not manifest until after occupational disease time limit had expired.

Ferro Engineering appealed the appellate court's decision to the Illinois Supreme Court, which allowed amicus briefs in support of Ferro from several insurance industry groups and employers such as the American Insurance Association, the Property Casualty Insurers Association of America, Travelers Indemnity Co., Ford Motor Co. and ExxonMobil Oil Corp., according to court records.

The high court ruled 4-2 on Wednesday that workers comp was the sole remedy for Mr. Folta's occupational illness. The majority opinion said that workers comp exclusivity is based on the fact that Mr. Folta's mesothelioma was caused by his employment, not whether he had time to claim workers comp benefits for his illness.

The Illinois “General Assembly intended to provide an absolute definitive time period within which all occupational disease claims arising from asbestos exposure must be brought,” the majority opinion reads. “Since (Mr. Folta'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.”

Mr. Folta's widow argued that “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” under Illinois' occupational disease claim time limit, according to the majority opinion.

But the majority noted that other Illinois workers with mesothelioma have been able to claim workers comp benefits, such as a Chicago city employee who developed mesothelioma within three years of the last day of his employment.

In a dissenting opinion, Justice Charles E. Freeman said he “strongly” disagreed with the majority ruling. He said Mr. Folta “never had an opportunity to seek … compensation because his occupational mesothelioma was not manifest until long after the statutory time limitations had elapsed.”

“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,” Justice Freeman's dissent reads. “The majority's interpretation runs directly counter to the (Illinois workers comp and occupational disease) acts' purpose.”