In a highly unexpected ruling, the Pennsylvania Supreme Court (with one of six members dissenting), has allowed occupational disease claimants to pursue common law claims against their employers if their claim is otherwise non-compensable as an occupational disease under the Pennsylvania Workers Compensation Act (the “Act”). For years, employers have relied upon the immunity provisions of the Act as a defense to such lawsuits. In the case of occupational diseases, such as those caused by exposure to asbestos, such immunity may no longer exist.
In Tooey v. AK Steel Corporation (Nos. 21 and 22 WAP 2011), employees brought common law claims against their former employers for exposure to asbestos on the job. Tooey worked for Ferro Engineering from 1964 through 1982 but did not develop an asbestos-related disease until December 2007. The other claimant, Landis, worked for a predecessor to Chemetron Corp. from 1946 to 1992, but did not develop an asbestos-related disease until July 2007.
The employers moved for summary judgment on the grounds that they were protected by the exclusivity provisions of the Act. The trial court agreed, and the Superior Court of Pennsylvania affirmed. On appeal, the Supreme Court reversed, holding as a matter of statutory construction that the claimants could pursue their claims. The Court focused on language defining an “injury.” The definition includes occupational disease “provided that whenever occupational disease is the basis for compensation, for disability or death under the act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment…” The Court construed the definition to exclude from the Act’s scope any claim for occupational disease that manifests itself beyond the three hundred-week period. The Court reasoned that such a result was consistent with the language used, as well as with the mandate to construe the Act to effectuate its humanitarian objectives. Read More
Marc S. Raspanti will be presenting at the American Bar Association’s Washington Health Law Summit in Washington, DC on December 9, 2013. He will be serving on a panel that will discuss ethical issues related to qui tam cases involving healthcare fraud and abuse cases.
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Douglas K. Rosenblum will be presenting at the annual conference of the Philadelphia Chapter of the Association of Certified Fraud Examiners on December 2, 2013. The topic will be: “Blowing the Whistle: Procedural and Ethical Implications of the False Claims Acts and Related Government Programs.” Read More
Michael A. Morse will be presenting at a National Business Institute CLE on November 21, 2013. He will present on “False Claims Act and Qui Tam Litigation.”
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Substance and alcohol abuse is a serious workforce issue confronting employers. Ramifications range from absenteeism and reduced productivity to increased health care costs, workplace injuries and accidents. To combat substance abuse, employers should consider establishing a drug and alcohol-free workplace with a written policy. Employers also should consider utilizing return-to-work agreements. Under such agreements, an addicted employee, following the completion of a rehabilitation program, agrees to abstain from alcohol or drugs as a condition of returning to work. A return-to-work agreement should specify the employer’s expectations of the addicted employee, as well as the consequences if the expectations are not met. Importantly, courts increasingly are upholding such agreements.
In Ostrowski v. Con-way Freight, No. 12-3800, 2013 WL 5814131 (3d Cir. Oct. 30, 2013), the plaintiff, a driver sales representative, requested a leave of absence to attend an alcohol rehabilitation program. After completing the program, the employer required the plaintiff to enter into a return-to-work agreement as a condition for returning to work. The agreement prohibited alcohol use, regardless of whether the plaintiff was on or off the clock, and warned the plaintiff that any violation of the agreement could result in termination. After signing the return-to-work agreement, the plaintiff relapsed and was terminated. The plaintiff sued, alleging that his termination violated various statues, including the Americans with Disabilities Act (“ADA”).
The U.S. Court of Appeals for the Third Circuit held that the employer did not discriminate against the plaintiff on the basis of his disability (alcoholism) when it fired him for violating the return-to-work agreement. The Third Circuit noted that the Sixth and Eighth Circuit Courts have held that employers do not violate the ADA simply by entering into return-to-work agreements that subject addicted employees to different standards from other employees. The court further noted that the return-to-work agreement did not preclude alcoholic employees from working for the employer; rather, it prohibited alcoholic employees subject to the agreement from consuming alcohol. Read More
Emily J. Hicks will be a panelist on an ABA Pharmaceuticals & Medical Device CLE panel covering “The Significance and Potential Impact of Mutual Pharmaceutical Company, Inc. v. Bartlett” held at Novo Nordisk in Princeton, New Jersey, on November 14, 2013.
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Marc S. Raspanti will be presenting “When to Disclose, Whether and When to Repay: The ACA’s Impact on White Collar Lawyering” at the PACDL’s White Collar Practice Seminar in Philadelphia, PA, on November 14-15, 2013.
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Jeanette H. Ho will be presenting at PBI’s Employment Law Institute West on litigating whistleblower claims – focusing on Sarbannes Oxley, Dodd-Frank and the False Claims Act on November 13-14, 2013.
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Mark Gordon will present at the captive’s program in Grand Cayman regarding brokerage liability and coverage applicable to the same on November 13-17, 2013. Read More
Pietragallo Gordon Alfano Bosick & Raspanti, LLP is pleased to announce the election of its newest partners, Alicia M. Passerin and Peter S. Wolff.
Dr. Passerin is a member of the Intellectual Property and the Intellectual Property Litigation Practice Groups and is based in the firm’s Pittsburgh, Pennsylvania office. She focuses her practice on patent prosecution, protection of trademarks, copyrights, and trade secrets, licensing, opinions and litigation.
Dr. Passerin received her B.A. from Washington and Jefferson College, her M.S. and Ph.D. in Neurobiology from Ohio University and her J.D., magna cum laude, from the University of Pittsburgh School of Law. During law school, she was an intern for the late Judge Carol Los Mansmann in the U.S. Court of Appeals for the Third Circuit and an extern at the University of Pittsburgh Office of Technology Management. She is a member of the Pittsburgh Intellectual Property Law Association and is a Barrister in the Q. Todd Dickinson Intellectual Property Chapter of the American Inn of Court. Dr. Passerin is a member of the Board of Directors for the Animal Care and Assistance Fund and the North Boroughs YMCA.
Dr. Passerin was selected as a Pennsylvania Super Lawyers Rising Star in 2008 and 2013.
Mr. Wolff is a member of the Litigation Practice Group and is also based in the firm’s Pittsburgh, Pennsylvania office. He represents individuals and corporate clients in complex civil litigation, commercial contract and tort disputes, employment disputes, constitutional claims, products liability, premises liability, and defamation. Mr. Wolff has successfully represented clients before state and federal trial courts and the Third Circuit Court of Appeals.
Mr. Wolff received his B.S., cum laude, from Duquesne University and his J.D., cum laude, from Duquesne University School of Law. Prior to joining the firm, he was an extern for then-Pennsylvania Supreme Court Chief Justice Ralph J. Read More
