December 13, 2013

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.  In this regard, the Court was troubled that a claimant might never recover because asbestos-related diseases rarely manifest within three hundred weeks after the last date of employment.

The case has significant implications.  Employees exposed to asbestos in the scope of their work, even after a lengthy period between the employment and the development of disease, now may pursue common law claims in Pennsylvania against their employers.  Questions may arise concerning the scope and cost of insurance that may cover such claims including workers compensation insurance and commercial general liability policies.  Affected employers should review their policies in light of this decision to maximize coverage for occupational injuries.