By: Nichole E. Humes, Esq.
On November 22, 2013, the Pennsylvania Supreme Court handed down a ruling that dramatically impacts the nature of asbestos litigation against employers in the Commonwealth in Tooey v. AK Steel Corporation et al., No. 21 WAP 2011. In what has been called a landmark decision, the Supreme Court held that the exclusivity provision of the Workers’ Compensation Act does not apply to occupational diseases which occur outside of the 300-week time period provided in the Act, therefore allowing employers to file common law actions against their employers.
The Workers’ Compensation Act provides that “the liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, … or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death…” 77 P.S. § 481(a) The Act further indicates that occupational diseases include asbestos and cancer resulting from direct contact with, handling of, or exposure to the dust of asbestos in any occupational involving such contact, handling or exposure.” 77 P.S. § 27.1(I).
Decedent, John Tooey, worked for Ferro Engineering as an industrial salesman of asbestos products from 1964 until 1982. In December 2007, 1,300 weeks following his last date of employment, Tooey was diagnosed with mesothelioma and eventually passed away. In 2008, Tooey and his spouse filed tort actions against multiple defendants, including his employer, Ferro, claiming that his mesothelioma was the result of his exposure to asbestos during the time he worked for Ferro. Tooey’s employers filed summary judgment on the basis that his cause of action was barred by the exclusivity provision of Section 303(a). The plaintiff/appellants responded to the summary judgment motions claiming that the federal and state constitutions and Pennsylvania case law permit a tort action against an employer where the disease falls outside the jurisdiction, scope and conversation of the Workers Compensation’ Act. The trial court agreed with the plaintiff / appellant and denied the employer’s motion for summary judgment. The Superior Court of Pennsylvania overruled the trial court and the matter was appealed to the Supreme Court.
The Supreme Court granted review of the case to determine whether under the plain language of the Act, the definition of “injury” excludes an occupational disease that first manifests more than 300 weeks after the last occupational exposure to the hazards of such disease, such that the exclusivity provision of the Act does not apply. In reaching their analysis, the Court stated that when reviewing issues concerning the Act, “we are mindful that the Act is remedial in nature and its purpose is to benefit the workers of this Commonwealth. Thus, the Act is to be liberally construed to effectuate its humanitarian objections, and borderline interpretations are to be constructed and resolved in favor of the injured employee.”
The Court conducted a review of the statutory language of the Act and ultimately concluded that the Act was written in such a way that it only applies if an employee develops an occupational disease within 300 weeks after that last date of employment. As such, if an employee develops an occupational disease after 300 weeks following the last date of employment, the Act does not apply and the employee is permitted to bring a cause of action against their employer at common law.
In reaching this decision, the Court focused on the fact that if it were to interpret the exclusivity provision otherwise, the injured employee were to have no opportunity for redress against their employer in contravention of intentions of the legislature when enacting the Act, the mandates of the Act itself, as well as the dictates of prior common law which provided that the Act should not be construed to allow an employer to avoid liability under both the Act and common law.
The Court concluded that the Workers’ Compensation Act does not apply to Appellant’s claims. The Court therefore held that “the exclusivity provision of Section 303(a) does not preclude Appellants from seeking compensation for their injuries via a common law action against Employers.” In reaching its decision, the Court stated that “it is inconceivable that the legislature, in enacting a statue 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.