Tooey—The Impact on the Employer Exclusivity Protection Long Afforded by the Act

By Jennifer T. Callahan, Esq.*

Prior to the implementation of workers’ compensation laws in the United States, civil lawsuits were the only avenue for an employee to seek compensation for job-related accidents. However, the system heavily favored the employer. An employee had to prove employer negligence. The employer, in turn, would defend such civil suits with the following three defenses:

1. Assumption of the Risk: If an employee agreed to work, it was assumed that he/she understood the potential hazards of the job duties. The employers would often formalize the risks into contracts, referred to as “death contracts” or sometimes known as a “worker’s right to die clause”;

2. Contributory Negligence: If a worker was in any way responsible for his/her injury, the employer was determined not to be at fault; and,

3. The Fellow Servant Rule: If another employee was involved in any part of negligence that resulted in the accident, the employer was absolved of any liability.

Very few workers had the financial means to bring a lawsuit against the employer. However, if the injured worker was successful, there was no cap on the damages the worker could receive from a jury. Therefore, there was potential economic harm for both the employee and the employer.

In 1915, Pennsylvania enacted the Pennsylvania Workers’ Compensation Act. The purpose of the Act was to create a “no fault system.” Workers’ compensation was an exclusive remedy to the employee for payment of wage loss and medical benefits if it was determined that the employee sustained a work-related injury within the scope and course of his/her employment. In turn, this was the employers’ exclusion to liability.

The exclusivity protection of the Act, Section 303(a), reiterates the broad protection afforded employers from civil liability as a result of an employee’s work-related injury. It states:

The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employes, his legal representation, husband or wife, parents, dependants, 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.

The Occupational Disease Act was not implemented until 1939. Section 301(c) (2) of the Act outlines the time frame in which an employee must bring such a claim for disability. It was intended to prevent stale claims and speculation over causation. It provides:

The terms “injury,” “personal injury,” and “injury arising in the course of his employment,” as used in this act, shall include occupational disease as defined in Section 108 of the Act: Provided, that whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within 300 weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease. And provided further, that if the employe’s compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable.

This decades-old exclusivity protection afforded employers was challenged in Tooey v. AK Steel Corp., et al, 81 A.3d 851 (Pa. 2013). On November 22, 2013, the Pennsylvania Supreme Court held that the exclusivity provision of the Workers’ Compensation Act, Section 303(a), does not preclude an employee from filing a common law claim against an employer where the occupational disease did not manifest itself within 300 weeks of the claimant’s last date of employment in the occupation or industry in which the employee was exposed.

Tooey was the consolidated appeal of two plaintiffs who had been exposed to asbestos during the course of their employment and who had developed mesothelioma more than a decade after the conclusion of their employment. They had filed lawsuits against multiple defendants, including their employers. The trial court had denied the employers’ motions for summary judgment that argued that the employees’ actions were barred by Section 303 of the Act. On interlocutory appeal, the Superior Court reversed.

In reversing the Superior Court, the Supreme Court noted that the Act is remedial in nature and its purpose is to benefit the workers of the Commonwealth. Therefore, the Act is to be liberally construed to effectuate humanitarian objectives. Thus, the court noted that claims for occupational disease which manifest outside of the 300-week period prescribed under the Act do not fall within the purview of the Act and that, therefore, the exclusively provision set forth in Section 303(a) does not preclude an employee from filing a common law claim against an employer. The court noted that, to find otherwise, would mean that an employee would be left with no recourse. It was noted that it would be “inconceivable” that the legislature, enacting a statute to benefit employees, would exclude a certain class of employees, who suffered the most serious injuries, and leave them without redress under the Act or common law. Thus, the court concluded that the legislature did not intend the Act to apply to claims for disability and death resulting from occupational disease that manifests more than 300 weeks after the last occupational exposure.

The contours of the Tooey case will be litigated for years. It will have far reaching consequences—potentially conferring liability on employers for occupational diseases that take years or decades to manifest. This is a significant shift in Pennsylvania law.

*Jennifer is a shareholder working in our Philadelphia and Scranton, Pennsylvania offices. She can be reached at 215.575.2708, 570.496.4607 or jtcallahan@mdwcg.com.

Defense Digest, Vol. 20, No. 2, June 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.