The Pennsylvania Supreme Court has ruled that the Workers’ Compensation Act does not cover occupational diseases, such as mesothelioma, that manifest more than 300 weeks after employment ends. The decision frees potential plaintiffs to seek compensation from their former employers through common-law actions.

On Nov. 22, a divided Supreme Court sent two mesothelioma cases back to the trial court after the Superior Court barred the actions. The cases involved plaintiffs whose mesothelioma manifested far outside the 300-week period prescribed by Section 301(c)(2) of the Workers’ Compensation Act.

Writing for the majority in Tooey v. AK Steel, Justice Debra M. Todd said in a 21-page opinion that barring cases with late-manifesting occupational diseases would undermine the intent of the statute. She noted that the average latency period for mesothelioma is between 30 and 50 years, and she said the window in the workers’ compensation law would then act as a “de facto exclusion” for all work-related mesothelioma claims.

“The consequences of employers’ proposed interpretation of the act to prohibit an employee from filing an action at common law, despite the fact that employee had 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 benefiting the injured worker,” Todd said. “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.”

Todd was joined by Chief Justice Ronald D. Castille and Justices J. Michael Eakin, Max Baer and Seamus P. McCaffery.

However, in his 27-page dissenting opinion, Justice Thomas G. Saylor argued that the late-manifesting diseases were meant to be covered by workers’ compensation, and therefore recovery is not available due to the 300-week window. The state’s attorney general, he said, should be the one to consider the plaintiff’s constitutional claims related to the inability to recover damages.

“Under these circumstances, where the constitutional validity of enforcing an act of the General Assembly vis-a-vis a large class of potential litigants is being challenged, I would conclude that the attorney general should be given an opportunity to participate,” he said.

According to Pittsburgh attorney Robert Dale, who represented the plaintiffs in the case, about 1,000 to 2,000 people develop mesothelioma across the country each year. He agreed with the majority’s decision, and said it will give those suffering from the disease in the state the chance to prove their claims before a jury.

“Absent [the majority's holding], we would have people diagnosed with latent terminal diseases with no benefit from workers’ compensation or the civil justice system,” he said. “I think it gives people with ultimately terminal diseases, because mesothelioma is invariably fatal, an opportunity in the civil justice system.”

The plaintiffs in the case were both allegedly exposed to asbestos throughout their employment. John F. Tooey had worked for Ferro Engineering, but stopped working in 1982, and Spurgeon E. Landis had worked for a predecessor to Chemetron Corp. He stopped working in 1992. Both were diagnosed with mesothelioma in 2007.

After the plaintiffs filed tort actions against several defendants, the employers filed motions alleging that the causes of action were barred by the exclusivity provision of Section 303(a) of the Workers’ Compensation Act. The trial court sided with the plaintiffs, and the motions were denied.

In an unpublished memorandum, the Superior Court reversed the trial court, and used the logic outlined in Ranalli v. Rohm & Haas, which found that, although a plaintiff’s late-manifesting injuries were not compensable under the act, the exclusivity provision under Section 303(a) still applied.

The plaintiffs appealed and used the Supreme Court decisions in Lord v. Pollard, Boniecke v. McGraw-Edison and Greer v. U.S. Steel to argue that, because their claims were not compensable under the act, the act does not bar common-law claims against employers. The plaintiffs further argued that to find for the employers would kill the balancing effect of the statute.

The defendants contended that the plain language of Section 301(c)(2) made reference to compensation applying only to disability or death that occurs within 300 weeks after employment. However, Todd agreed with the plaintiffs’ plain-language interpretation that the act itself applied only to disability or death manifesting within the 300-week window following employment.

Quoting from the Supreme Court’s 1992 decision in Alston v. St. Paul Insurance, Todd added that the provision “‘reflects the historical quid pro quo’” relationship, where an employer assumes no-fault liability for work-related injuries without the possibility of facing a larger common-law verdict, and an employee receives fast compensation but forgoes some elements of damages.

Kenneth M. Argentieri of Duane Morris represented Chemetron, and Michael D. Heintzman of Rawle & Henderson represented Ferro Engineering. The attorneys did not return calls for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 48-page opinion in Tooey v. AK Steel, PICS No. 13-3242, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •