this case fairway engineering the question presented in this case is whether an employee who has suffered an accidental injury work related injury can bring a common law court action against his employer because the time for bringing a worker's compensation claim has expired and we said that the answer to this question is no the facts are pretty straightforward the plaintiffs to see james falta worked for our company compensation act and section five of the act it's called the exclusive remedy but that portion of the act provides that no common law action is available for an injury that is suffered in the line of very straightforward there's no question in this case that to us in any respect it's not and that was the basis on which the circuit court dismissed the case the exclusive remedy was workers compensation under section five the appellate court reversed and the  forty one years after his expulsion so it was beyond the statute of repose with nonetheless the court held there was a common law remedy available now since the workers comp remedy had expired  you know i think the fundamental problem with the appellate court's ruling is that it destroys what you see virtue in this court's decisions and in the briefs is what's called the grand bargain and when the legislature created the worker's compensation act over a hundred years it was a pretty significant give and take you know employers excepted strict liability i believe without fault for all the work related injuries anything that happens in the bargain is really embodied i think entirely in sectional eleven of the act i really think that's kind of a critical aspect of the court you know analysis in this case is section eleven because that's section that says that the compensation you're in provide together with the provisions of the act shall be the measure of an employer's responsibility for all injuries axonal injuries arising out of the course of the employment and the key phrase in there that i think we  focus on for purposes of this case as it says the compensation here are provided together with the provisions of the set of this act so it's not just that compensation is limited there's a schedule of compensation under the act but there are other provisions that provide certain protections that the employer gets in exchange for accepting liability without fault for work related injuries and two of those protections  those in this case one that's twenty five years long legislature made that determination that that was an appropriate time to bring these claims and the other provision that is part of that phrase compensation together with the provisions of the act section five exclusivity that there would be no common law cases to defend you know your players tend to say that you know the exclusivity provisions only they're valid double recovery but that's really not true this is really part of the entire bargain it is not just any concern over double recovery it's the fact that you as an employer are not going to have to be called upon to even defend a common law action there won't be any this entire system of industrial accidents is moved into the workers compensation liability is actually been provided in its place or rights of action for damages should not be deemed taken away except when something of value has been put on their plates in other words if there is this give and take if there is no compensation then shouldn't there be a right to damages well the court has already addressed that question and there's a series of three cases that have come before this court that if addressed that precise circumstance where if someone the question was if case versus baxter health care and when each one of those cases the plaintiffs suffered an injury for which the act did not provide them a chance and in each one the point of a lot of common law action under the exact same fear what larcenous sort of talking about there that you know if you can't recover any damages then you should at least be able to bring a common law action and the court said no in all three instances and the reason is because the way the statute disparate the way the statute is structured is that the provisions the it coverage of the act what it suites into its fold has nothing to do with the availability ability to recover damages and i think the best example really is the duly versus caterpillar the court said no it's part rights it was a friendly person he said but wait a minute there was no there was no compensation there was no remedy because i wasn't dependent on her for support and the act only provides a remedy if your as the spouse is depending on the season for support  almost a parallel to this case where you have the widowed spouse sewing on behalf because of the death of the student and the court said no if any time that a an injury falls within what they refer this court referred to and larson as a is the coverage formula of the act an accidental injury arising out of an in the course of the employment then all of the x provisions apply and you're subject to that and in that instance there was no case there was no recovery because the particular type of injury that the plaintiff suffered was one for which the act didn't actually provide a remedy so it's it's not it's not unheard of it's been addressed previously by th exclusivity bar that includes the statute of repose that includes provisions that limit recovery in the event that you are or are not dependent on the scene for support all of those factors and that's just i mean that's what the incorporate the discovery rule no it does not in this case the there there is a provision within section six six d of the act requires a disability manifest itself within three years exposure then you have twenty five years within which bring the plan and that's part of the problem here is i want to talk about if you think about what's happened here from the standpoint of the statute of repose the legislature created its rendered meaningless i mean the employer is actually made worse off by for i mean this statute of repose purpose of it as this quarter's address many times is to ring for now to end the cut off the long tail of liability it's unfortunate aspect of a statute of repose it cuts off liability but in this case the statute of repose is is not only rendered meaningless but the employers placed in a worse position because here's the legislature has created this statute of repose to protect the employer as part of a grand bargain and yet now the court is saying you know the appellate court is saying it doesn't matter now you will have to face a common law cause of action the common law cause of action is revived the employer would actually be better off in this case if there were no statute  repose because if the act had no statute of repose and there's no question that mr falters injury would have fallen within which he could have been able to make it work as compensation claims and we wouldn't even be here today but it's my furniture the fact that there is a statute of repose that we're here so it's it's ironic that we're actually worse off that a common law remedy is actually revived by operation of the statue of hose that is not anywhere near the end the outcome  think the legislature intended long so it does destroy that aspect of it  kind of jumped on the court this court's use of the word compensable what does that term mean a compensable is not a word that appears in the act itself and the portion of the great decision that  jump on is a listing it's really it's not even really a holding of the court in your brain it's a description it's descriptive of the act the court said in the context of discussing when you can and can't bring a common law action against the employer it said there's four circumstances it's either not accidental or it doesn't arise out of the employment meaning there's no causal connection to employment or didn't rise in the course of the employment meaning at a time a place where you're working or it's not compensable and ye the act doesn't apply if you can't recover damages you can't recover bill in compensable it is essentially what the what the court with the court says the same thing and that is exactly what the decisions and move shon and  that the other provisions of the act may control how many how much damage is an element of damages recoverable it's simply a question of how to injury or that's what's common in all three of those cases so this court is really reject the whole underpinning ity is identical for what is a line of duty injury and that's what brings all of this within the sweep of that there are probably by my count at least six other  courts around the country most of them state supreme courts that have all addressed this identical question you know what happens when somebody has illness an employer employees illness manifests itself after a statute of repose has expired and they can no longer bring up workers compensation claims so this is this is been tried before and in the cases all of those cases that have found in favor of the position that we have a case here that the action is part of there is no common law of gravity the statutes were all very similar if not identical to illinois because they have a coverage formula that encompasses that that determines whether it falls within the act based on how the injury occurred and is not based on whether or not you're able to actually recover damages now there's two exceptions there's a pennsylvania supreme court case that goes the other way and there's a montana supreme court case that goes the other way but if you look closely at the language of those statutes they're completely different than  in the pennsylvania case what the statute said was that it only applies to injuries that manifest themselves during the three year period in which you can bring a claim so if the injury that's how they define the injury for purposes the act is one that occurs one that arises within the three year statute of limitations and well that case of the plaintiff's injury obviously arose outside of the act does not apply by its own definition it was straight statutory construction case and that's really what this one has to in the give me case which is the montana case in that case it said that it had a no you know an exclusive probably provisional kaamelott action exists but then it has a clause in it that says except for the employee is not eligible for compensation we don't have any language even remotely like that so you know it's it is a harsh result there's no question about that but that's what happens when the legislature imposes a statute of repose it's going to it's going to hurt something back and that's unfortunately what happens here and there are some it's an unfortunate implications from the public or its rulings first of all it creates indefinite only have we lost the protection the limited liability of the workers compensation we've gained indefinite liability into the future for unlimited tort damages so when i say that the appellate court's decision obliterates or you know this grand bargain that the legislature struck in the worker's compensation act that's no exaggeration employers will be liable forever under the circumstances of this case there's no limit as a result of that there insurance problem and i think it's fair for the court to take into consideration the economic impact that this decision will have on employees and employers alike because you know you have you know when a worker's compensation claim is you buy statute wires that you have insurance for the worker's compensation claim but if the employer if the claim is not a worker's comp claim now the question is what is my commercial general liability policy over those all contain  exclusions for employee injuries so this falls right into a gap where there's not going to be any coverage which hurts employees because in some instances these companies as you see in this case fairly engineering without a business in one thousand nine hundred eight there's no insurance that part's not a record but it's a consideration i think we're just there's also sort of this injustice that i think arises from this case where someone who has remained the only sprit for over forty don't think that was the result that the legislature intended there either i think it intended them all to be treated the same  and sation if they were entitled to it under the act what council in ferro want you to do when the decision is given the employer that but take away the quote from the employee because under this provision it does not allow the employee to file an application for compensation and now they want to stretch that to it also denies he or she the right to file become a lie actually if you read the plain language of this provision it's sat in cases of disability caused by exposure cetera within twenty five years after the employer was so exposed the right to file such application shall be are it's simply deny us that court recognising the pennsylvania's main court case to it has a thirty to fifty year latency period so i think it would be confined to just those few cases where there would be that lengthy l period where you know others and counsel is suggesting somehow that this is going to be this explosion of litigation against the employers if this court would allow it come alive to go for well there are a lot of suppliers  you factors of some of the products of volved here because of the injury that have been sued all that what happened was that the employer was probably the principal person at all for allowing that exposure would just be added to the litigation and then the employer would have to pay their fair share right now would fall totally i mean your factors who may not be better response so that that's the only thing that would happen there would not be this explosion of litigation that they counsel against in fact it was the same argument that pharaoh argued in to me they were he defended also in the pennsylvania supreme court case and they talk about this avalanche a little game sion there would be people leaving the state there would be a loss of jobs well in fact as we pointed out in a brief that is not happening in matter of fact the employment rate there has gone down or sick of the silly since that  case has been decided there has been this mass exodus of them of employers in that state it didn't happen it's like chicken little in the sky is falling you hear that all the time whenever someone is seeking additional benefit larson this court at least as far as we know has cited to larson's treatise over one hundred fifty years and he says in this treaties and this is referring to the provisions of the state workers compensation law and your honour's counsel mention well this is been this has been decided in four or five other states supreme courts and they reached the same decision sided in that case so all these courts have relied upon the harsh result while the i think the pennsylvania supreme court has put that issue to rest this court's in cases in  which we've all sides have been instances where there had been some compensation some possibility of compensation that was a or that is but he got compensation for the rest of his injury that's part of the grand bargain but here there's no possibility for compensation and he cannot file in record about that companies carry insurance if we cover this type of thing in when it comes down to it how should that balance away here i think is the answer whether it's covered by insurance or not and that is this court and the two four have always taken into account the humanitarian purposes of the at this court has consistently how really firm the principle that the main purpose of the worker's compensation act is to provide financial protection for injured workers in this provisions must be interpreted liberally to affect your weight that purpose i'm not asking this court to interpret that act liberally all i'm asking is that in force the plain language of that act which states that the only thing that are in this circumstance is an application for workers compensation if you stretch that to me that also other than the compensation here in provided so it is so that there's come sation there's a compensation possibility and i want to make sure the record is clear on this because frankly i think her eyes misstated our position we are not stating that if an employee has the right to file an application like we were denied that right if the workers compensation commission or arbitrator decides your your action falls within the line of duty and we don't agree that it's compensable that's fine that person has had their day before the commission we never got our day before any commission so we're entirely to at least a day in court so we're not seek medical attention media i mean the idea that someone you can suggest that they're going to play around the system so they can file a common law injury where by the way one of the things that the employee game from know i think the answer is yes first of all the employer would not necessarily be better off under worker's comp i just don't buy that argument because are elements of damages that the plaintiff would not be entitle to loss society there would be other elements of damages that he or she is the worker may not be entitled to it is a no fault but on the other hand they are able to limit the amount of damages that they would have to pay so it would be certainly to their advantage to have the workers in place but the legislature decided that after certain period of time when that was part of the part that an employee would have to go back to the court in a compilation which again is not going to be something that's easy the question is who should bear the responsibility here if you look at the grand that if the employer has a question with respect to just the limited number of cases to insurance that should not outweigh the fact that this particular person through no fault of his own all the pennsylvania supreme court said into it is inconceivable that the legislature enact in this statute specifically designed to benefit employees intended to leave a certain class of them chloe's who have suffered the most serious of work related injuries without any act it humanitarian purposes and the president of this pork barrel should not be allowed to escape all possibility of liability for injuring his workers using the the cause of action for some compensation we were not given that right yet the legislature decided that the plain language of the act says that but it does not say that we cannot seek it here one of the things i think mr reed overlooks in his argument when he says that all they wanted was the possibility of being able to make a point just that they could have made work compensation claims you know the statute of repose as it is any type of positive action that's an affirmative defense you know it's not like they would just walk into the industrial commission file the application when the court would just look at it and said sorry it's too late it's an affirmative defense just like all statutes of limitation and statutes of repose so to suggest there was no possibility when there's a certain fallacy about this whole case when you think about it they never tried to file a worker's compensation claim and for engineering never had the chance to raise the affirmative defense of the statute of those schemes so you know there's that's a little bit of the case here that seems like a fallacy to me so that they did have the opportunity to file  and that is why there is the possibility of a cover because for all you know maybe the employer isn't going to raise the statute of repose as a defense in the case will pay just a little good case in worker's comp you know the street and says there's these four did no financial protection and that's the inherent unfairness of this case no financial protection act supposed to provide that's exactly what happened in the duly case i talked about in that that plaintiff's wife was killed at caterpillar and they received no financial protection and that's because it was a different vision of the active operation there because it said the non dependent spouse of someone who's injured in the course of their employment cannot recall so again i mean there's another example previous decision by this court where they found that this court found that there was no remedy available just chief justice kirby asked about you know the possibility extending to other cases of course yes definitely extend other cases it's creates a very slippery slope if you look at this from the standpoint of any time any time that's what he's advocating any time that an employee is unable to recover workers compensation benefits they get to now sue in tort then that means that for who knows what reason someone has been denied benefits their claim fails that now they can bring a common law action i mean not saying that it's go happen immediately but that is the slippery slope that you're heading down if you determine that simply because someone is unable to recover any benefits because of some of the provisions that the legislature has provided in the statute then ultimately that's where your head in the this this is you know the penultimate case of statutory construction this is what the legislature determined this is how the court has consistently applied this statute for many many years  thyroids received x ray treatment for it is a as a as in a baby and twenty five years later developed thyroid cancer and of course the med mal statute of limitations and reposed in the street mention provided you can't sue more than four years after the act remission uphold the legislature's determination that in some instances i mean clearly the legislature contemplated that there were going to be cases that were going to be are i mean what's what's the point of having a statute of repose if it's not for the purpose of barring some claims after a certain period of time has passed and letting the employer know that your liability has ended that's purpose and so you know the legislature obviously intended that this would be a result in some instances you know maybe mystery is right maybe there are for many cases that would rise like this maybe that's what the legislature was thinking when they decided that twenty five years was sufficient period of time but that is the law and if they want to change the law so that you can bring a common law action once your worker's comp claim has become time barred then they need to go across the street to change that that is not you know that that would be judicial legislation to completely change the circumstances  is advocate and he says it's a humanitarian act and yes to certain extent certainly it is you know disagree with that you know but it's also got a pretty strong economic component to that is what the act is here to do is to balance  sometimes and you know there's going to be instances where somebody is not going to recover and the legislature built provisions in the act that i don't want the court overlook the fact that he's not left without any remedy point of sued fourteen other defendants in this case plaintiffs are allowed to bring the claims against all the people who supplied as best as containing products brought those into the workplace there's huge you know trust funds bankruptcy's all sorts of sources of recovery we never know exactly how much they recover in a case like this all fourteen of the defendants in this case up we don't know how much money they pay but they also one went right to the truck so it's not like plaintiff goes home with nothing in this case it's just that they don't have a remedy against the oil that's the only thing that this case demonstrates mystery is critical of the well the case the federal court of appeals decision saying that it just wrong on the pennsylvania supreme court decision but you know that that misses the point you know weldon and the reason why it's cited by so many other state supreme courts to follow it is because of the logic of the decision and the logic of that decision is what we are advocating here that when you periods then this is the kind of out of it doesn't matter does it make any difference if there's an inability to recover damages this is how the statute is designed and that's what the logic of welcome really brings to bear here because every other court that used it looked at their own statute and looked at how it was worded and that was our itself in iowa kansas new jersey all of those courts look at statutes