PENNSYLVANIA RECORD

The Pennsylvania Supreme Court recently rendered a decision that could

have widespread implications in the area of workplace disease litigation.

The high court, in a case decided late last month, ruled that occupational diseases that manifest outside of a 300-week period prescribed by the Workers’ Compensation Act do not preclude an employee from filing a civil action against his or her employer.

In undertaking the two consolidated appeals, Tooey v. AK Steel Corp. and Landis v. A.W. Chesterton Co., the justices were tasked with addressing whether workers such as John Tooey and Spurgeon E. Landis could seek disability compensation benefits, or file lawsuits against their employers, since their respective mesothelioma diagnoses came well after 300 weeks of the date of their last asbestos exposure.

In its Nov. 22 ruling, the high court determined that the Workers’ Compensation Act did not apply to latent occupational diseases, or diseases that could take years to develop and be diagnosed.

The justices’ decision reverses an August 2010 order of the state Superior Court, a lower-tier appellate bench, which in turn had reversed a June 2008 Allegheny County Common Pleas Court ruling.

Tooey, the plaintiff in the first case, worked as an industrial salesman of asbestos products for Ferro Engineering, a division of Oglebay-Norton, from 1964 until 1982, the record shows.

He was diagnosed with mesothelioma in December 2007 and died less than a year later.

Landis worked for Alloy Rods, Inc., predecessor in interest to Chemetron Corp., and ESAB Group Inc., from 1946 until 1992.

He, also, was exposed to asbestos during his employment, and was diagnosed with mesothelioma in the summer of 2007.

Tooey, Landis and their respective spouses filed separate lawsuits against their employers and other defendants in 2008.

The employers, however, sought summary judgment on the grounds that the complaints were barred by the exclusivity provision of Section 303(a) of the Workers’ Compensation Act.

The trial court agreed with the plaintiffs that the federal and state constitutions, as well as Pennsylvania Supreme Court precedent, allows a civil suit against an employer where a disease falls outside of the jurisdiction, scope and coverage of the Act, the record shows.

The employers subsequently filed an interlocutory appeal with the Superior Court, which ended up reversing the trial court, determining that it was bound by recent case law.

The Superior Court based its decision on one case in particular that said a plaintiff’s injuries due to exposure to toxic chemicals that manifested more than 300 weeks after the plaintiff’s last employment were not compensable under the Workers’ Compensation Act.

The Superior Court reasoned that Section 303(a) “does not deny access to the courts, rather it limits recovery as contemplated by the legislative scheme,” according to the high court’s recent opinion.

The plaintiffs had argued that under the plain language of Section 301(c)(2) of the act, an occupational disease that first manifests more than 300 weeks after the last occupational exposure doesn’t fall within the definition of injury set forth in that section of the statute, that the act does not apply to employees seeking compensation for such diseases, and that the exclusivity provision of Section 303(a) does not preclude a worker from seeking recovery through a civil action against an employer, the record shows.

The employers argued that there is a difference between coverage and compensability under the act, and they further asserted that workers diagnosed with mesothelioma or other latent asbestos-related diseases are not completely without a remedy at law, since they can still seek compensation from non-employer defendants, according to the Supreme Court’s memorandum.

In its decision, the high court pointed out that one of the past court decisions relied upon by the defendants in their appeals arguments was decided at a time when participation in the workers’ compensation system was elective, and employees could opt out of a system that might deprive them of compensation for an entire category of injuries.

“Employees no longer have that option, and are required to participate in a system that likely will deny them the opportunity to seek compensation from their employer for any late-manifesting work-related injuries,” the justices wrote.

The justices specifically singled out mesothelioma, which has an average latency period of 30 to 50 years, saying that even mesothelioma that manifests at the lower end of that average would not occur for decades after an employee’s asbestos exposure.

Thus, the 300-week time window in which to bring a claim “operates as a de facto exclusion of coverage under the Act for essentially all mesothelioma claims,” the high court wrote.

“Indeed, the consequences of Employers’ proposed interpretation of the Act to prohibit an employee from filing an action at common law, despite the fact that the employee has no opportunity to seek redress under the Act, leaves the employee with no remedy against his or her employer, a consequence that clearly contravenes the Act’s intended purpose of benefiting the injured worker,” the ruling states. “It is inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees who have suffered the most serious of work-related injuries without any redress under the Act or at common law.”

Plaintiffs’ attorneys seem to be hailing the Supreme Court’s ruling as a positive legal development.

“This is a major victory for our clients and for victims of occupational disease,” Rick Nemeroff, president and founder of The Nemeroff Law Firm, said in a statement. “Mr. Landis and Mr. Tooey, like many employees diagnosed with latent occupational diseases, had no chance for relief from the employers that had exposed them to occupational toxins. This opinion goes a long way toward protecting their rights, and the rights of other employees and their families, who have suffered from negligence or wrong-doing by an employer.”

In his statement, Nemeroff noted that most other states, except Louisiana, “restrict the rights of victims in these cases.
“We hope this humanitarian decision in Pennsylvania will influence other states to take action to protect the rights of those [who] have suffered due to employer neglect or misconduct,” he stated.

Defense attorneys, however, are sure to be displeased with the ruling, since it represents a major shift in Pennsylvania law and could mean more employers whose workers may have been exposed to potentially dangerous materials may now be held liable in civil litigation.

The decision was penned by Justice Debra Todd.

The others who made up the majority were Justices J. Michael Eakin, Max Baer, Seamus McCaffery and Chief Justice Ronald Castille.

Justice Thomas Saylor filed a dissenting opinion.