In a dramatic shift from precedent, the Pennsylvania Supreme Court in Tooey vs. AK Steel et all., No. 21 WAP 2011, 2013 WL 6150887 (Pa. Nov. 22, 2013), held that the Pennsylvania Workers Compensation Act does not insulate employers from civil liability for toxic tort claims brought by injured workers or their families to recover damages for late manifesting occupational disease.
Traditionally, Pennsylvania employers have been immune to personal injury civil suits brought by their employees. This immunity was the quid pro quo implicit in the adoption of the “no fault” Pennsylvania Workers Compensation Act. Section 303(a) of the Act, generally insulates employers from civil liability for injuries arising out of their worker’s employment, and reads as follows:
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 on account of any injury or death as defined in section 301 (c)(1) and (2) or occupational disease as defined in section 108. 77P.S. Section 481.
This immunity applies to all claims, including occupational disease. Section 108 of the Act defines occupational disease to include coal workers pneumoconiosis, silicosis, asbestosis, and asbestos-related cancers. Generally speaking, if an employee can demonstrate that his disease was caused by his workplace exposure, he is entitled to indemnity and medical benefits. However, Section 301 (c) (2) of the Act specifies that whenever occupational disease is the basis for compensation, it shall only apply to disability or death that occurs within 300 weeks of the last date of employment in the occupation which created the exposure. 77 P.S. Section 411(2). In essence, to qualify for benefits under the Act, the disease must manifest within 300 weeks of the last exposure. If the manifestation occurs beyond the stipulated 300 weeks, the claim was deemed to be non compensable and the exclusivity provision of the Act prevented the employee from suing his employer. As such, the remedy was limited to pursuing a tort action against the sellers and manufacturers of the products that caused the disease. The Tooey decision changes this.
InTooey, the plaintiff was allegedly exposed to asbestos products at work, developed mesothelioma (an asbestos- related cancer), and ultimately died as a result. His widow filed an asbestos-based toxic tort lawsuit naming as defendants not only various manufacturers and sellers, but alsoMr. Tooey’s employer. The employer moved for summary judgment, citing the exclusivity provision of the Act. The Trial Court denied the motion, but the Superior Court reversed, ruling that even though the workers’ compensation claim was barred by the 300-week limitation period, any civil claim was barred by the Act’s exclusivity provision.
Relying on the all too often cited “humanitarian purposes” of the Act as well as a painstaking statutory construction and grammar review, the Tooey court held that the Pennsylvania Workers’ Compensation Act does not apply to occupational disease claims that manifest beyond the proscribed 300 weeks. Concomitantly, the Act’s exclusivity clause does not apply, leaving those claimants free to pursue their employers in tort.
What It Means to You
Plaintiffs will no doubt argue for a retroactive application on the grounds that Tooey merely interprets an existing statute. Employees have already begun to sue their employers directly and we anticipate that existing toxic tort defendants—manufactures and suppliers—will move to employers as additional defendants in existing cases, for no other reason than to expand the defendant pool.