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A proposed class of current and former Rohm & Haas employees attempting to bring a medical- monitoring action against the chemical manufacturer has been halted by the Commonwealth Court. In ruling on the defense’s preliminary objections this week, the three-judge panel held that though the risk of harm alleged by the named plaintiff, William Brendley, might be compensable by a workers’ compensation judge, a class action wasn’t permissible in a workers’ comp proceeding. “Absent express authority permitting the filing of a ‘class action claim petition,’ Brendley should properly file an individual claim petition to have a determination made, by a WCJ in the first instance, as to whether his medical monitoring claim is compensable,” Judge Robert Simpson wrote. President Judge Bonnie Brigance Leadbetter and Judge Joseph F. McCloskey joined Simpson on the unanimous panel. Defense attorney Ralph Wellington of Schnader Harrison Segal & Lewis said he thought the decision was appropriate. “Under workers’ compensation there isn’t a class action procedural device,” Wellington said. “There are other ways of handling it, since [the Bureau of] Workers’ Compensation can consolidate claims.” Plaintiffs’ attorney Aaron Freiwald said though he was disappointed the panel did not allow the case to proceed as a class action, he was pleased the court had recognized a claim for medical monitoring for Pennsylvania workers. “I think the Commonwealth Court has issued a historic decision,” Freiwald said. “In the course of [dismissing our complaint] the court appears to have recognized that workers in Pennsylvania have a claim for medical monitoring. I’m not aware that a Pennsylvania court has ever stated that.” Freiwald said he hoped the decision would lead to earlier detection for devastating illnesses. Still, Freiwald said his clients were considering their options, including filing a petition for allocatur with the state Supreme Court on the question of whether the claim should be allowed to proceed as a class action. The other option, he said, was to file an individual claim with the BWC. If that claim is successful, he said the panel had said that decision could have a “preclusive effect” as to Rohm & Haas. The members of the proposed class are the 6,000 people who have worked at Rohm & Haas’ Spring House Research Facility since it began operations in the 1960s. According to court papers, the plaintiffs alleged that the work they performed at the Montgomery County facility created an elevated risk for developing glioblastomata. Twelve individuals who have worked at Spring House have been diagnosed with malignant brain cancer. Brendley has been seeking the creation of a fund to cover the costs of long-term diagnostic testing and clinical examinations to detect brain cancers, the opinion said. But the proposed class action has had trouble getting off the ground from the start. In April 2006, Philadelphia Common Pleas Judge Mark I. Bernstein ruled that the proposed civil suit was not allowed under the Workers’ Compensation Act, according to court papers. Bernstein advised Brendley to file his claim with the Bureau of Workers’ Compensation. But when the plaintiffs attempted to file a claim for medical monitoring – for Brendley and others similarly situated – the bureau returned it with a note that each individual would have to file a petition, according to the opinion. The plaintiffs appealed to the Commonwealth Court, requesting a declaration as to whether WCA provided compensation for uninjured claimants seeking medical monitoring and whether the act provides for a class action claim, according to court papers. The plaintiffs argued that the proposed class members were not “injured” as defined by Pennsylvania law because they have no current symptoms or signs of injury, the opinion said. They also argued that the bureau did not appear able to hear a class action claim and sought clarification from the court. The defense argued that the Commonwealth Court lacked jurisdiction because the named plaintiff, Brendley, was seeking a declaration regarding the compensability of a workers’ comp claim – but his claim had never been heard before a WCJ, according to court papers. In its examination, the panel noted that both the Commonwealth Court and state Supreme Court had held “risk of harm” to constitute a compensable injury under certain circumstances. The court looked to the Supreme Court’s decision in Lash v. Workmen’s Comp. Appeal Board, which had said that though the Lash claimants had not yet suffered injury, that did not mean they were not suffering from a compensable injury, according to the opinion. “Although Brendley repeatedly avers (as a legal conclusion) neither he nor any other putative class member sustained an injury within the meaning of the act, the ‘risk of harm’ alleged may be compensable,” Simpson wrote. Moreover, the court said Brendley might have a claim because “it is undisputed that medical costs are payable under the act even when there is no loss of earnings or no compensable disability.” As a result, the court said Brendley should file an individual claim with the WCB, adding that if other employees wanted to file similar claims, they could be consolidated before a WCJ, according to the opinion. But the court found a class action for medical monitoring impermissible in the workers’ comp setting. “While no Pennsylvania case specifically addresses the propriety of class action suits in workers’ compensation proceedings, this court generally holds class actions are unauthorized in the administrative setting,” Simpson wrote. The court quoted its 1979 decision in Sullivan v. Commonwealth, saying, “We do not think the right to assert class standing in an administrative proceeding should be inferred in the absence of a statute or rule specifically conferring and defining such a right.” The court then directed Brendley to file an individual claim. (Copies of the 16-page opinion in Brendley v. Pa. Dept. of Labor and Industry , PICS No. 07-1008, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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