Pennsylvania Effectively Eliminates Workers’ Compensation Act as Source of Protection for Employers from Suits Arising Out of Latent Occupational Disease Lawsuits

by Wilson Elser
Contact

On January 29, 2014, the Pennsylvania Supreme Court denied defendants’ Petition for Reargument of the Court’s November 22, 2013, ruling in Tooey v. AK Steel Corp. et al. The ruling held that the Pennsylvania Workers’ Compensation Act (the Act) did not provide a bar to the lawsuits brought by the estates of two former employees of the defendants. The estates alleged in their complaints that the employees had been exposed to asbestos while employed with the defendants, but did not develop mesothelioma until more than ten years after their employment with the defendants had ended. Prior to the Pennsylvania Supreme Court’s ruling in Tooey – a major departure from existing Pennsylvania case law – common law claims for a latent occupational disease that first manifested itself outside of 300 weeks after the last day the employee was employed by his/her employer were barred by the exclusivity sections of the Act.

Background
The Workers’ Compensation Act works to insulate Pennsylvania employers from lawsuits arising out of workplace injuries occurring to employees while in the scope of their employment with the employer. In exchange for insulation from civil liability, the employers insure against those risks of loss to employees through the purchase of state-mandated workers’ compensation insurance coverage. Under the Act, an employee is compensated from the Pennsylvania Workers’ Compensation Fund for such injuries through fixed weekly payments until such time as the employee recovers from the workplace injuries.

Section 303(a) of the Act, which had been interpreted by prior Pennsylvania courts as providing insulation from liability to employers for injuries sustained during the course of employment with the employer (the “Workers’ Comp Bar”), states the following:

“The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in Section 301(c) (1) and (2) or occupational disease defined in Section 108.” 

Section 301(c)(2) of the Act states: “… whenever occupational disease is the basis for compensation, for disability or death under the Act, [the Act] shall only apply to disability or death resulting from diseases occurring within [300] weeks after the last date of employment.”

The Tooey Decision: A Game Changer
In Tooey, the Pennsylvania Supreme Court summarily rejected the long-established precedent, which held that if a former employee had a latent disease that only manifested itself 300 weeks after the employee’s last date of employment, the employee would not be entitled to (1) workers’ compensation benefits or (2) the right to institute tort claims against the former employer. The only remedy remaining in such circumstances would be a direct lawsuit against, for example, the manufacturer of the asbestos-containing product or a distributor of that product.

In Tooey, the employees charged that due to exposure to asbestos dust while employed with the defendants, each had developed mesothelioma. The individual plaintiffs died and their estates filed suits against not only the product manufacturers and distributors but also their former employer(s). Summary judgment motions were filed in the trial court by the employers invoking the “Workers’ Comp Bar” discussed above. The motions were denied by the trial court. On appeal to the Superior Court, the trial court was reversed and the Superior Court – relying on existing precedent – concluded that the claims by the plaintiffs were barred. The Superior Court found that the claims were barred even if their mesothelioma manifested itself more than 300 weeks after their last date of employment.

In reversing the Superior Court, the Pennsylvania Supreme Court analyzed the “plain” language of section 301(c)(2) and found that contrary to the Superior Court’s interpretation of the section, section 301(c)(2) should be read to provide a bar to a tort claim against a former employer only in those cases where the occupational disease occurs within 300 weeks after the last day of employment. The Pennsylvania Supreme Court further noted that its grammatical construct simply made more sense and was more consistent with the Act’s legislative history and purpose. If the Superior Court’s interpretation were to continue to be upheld, the Pennsylvania Supreme Court reasoned that the employee would never be able to obtain any relief against an employer.

Ramifications
The most significant ramification from the Pennsylvania Supreme Court’s ruling in Tooey is that employers now face liability for common law claims arising out of occupational diseases with latency periods greater than 300 weeks. The Court was very careful in what it did not say in the Tooey decision – it did not say that the opinion was limited to only mesothelioma cases. To the contrary, it is evident that this decision will provide compelling authority that the “Workers’ Comp Bar” does not apply to any personal injury claims arising from an alleged occupational disease that does not manifest itself “within” 300 weeks from the last date of employment.

Further, from a practical standpoint, the Tooey decision now enables counsel for the plaintiff alleging injury from an occupational disease that has not manifested itself within the first 300 weeks after the last day of employment to sue the employer directly and wait for the employer to join the asbestos manufacturers and distributors.

Finally, the Tooey decision has already prompted a wave of amendments to complaints already on file seeking to join the employer in the ongoing litigation. It is unlikely that any trial court would prevent such timely amendments in light of the recent denial by the Pennsylvania Supreme Court of the defendants’ Petition for Reargument.

This decision by the Pennsylvania Supreme Court expands the liability of employers in latent occupational disease cases. Employers that know they have exposed employees to asbestos-containing products would be well advised to contact their insurance brokers to begin analyzing what insurance coverage they had in place during such time periods and the terms, conditions and limits of those policies (both primary and excess). In addition, the employers should consider whether or not they are able to purchase “retroactive” coverage for potential liabilities. Such employers should begin to investigate which of its employees and/or their estates have commenced litigation as a result of exposure to not only asbestos-containing products but also any other industrial toxins that may be the source of occupational diseases with latency periods of greater than 300 weeks.

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.