PA Update – Pennsylvania Supreme Court declines to extend Occupational Disease Act’s Exclusivity Provision to Latent Diseases
On January 22, 2025, the Pennsylvania Supreme Court published its 5-2 decision in Herold v. University of Pittsburgh, et al., 329 A.3d 1159 (Pa. 2025) holding that the Pennsylvania Occupational Disease Act (“ODA”) does not preclude an employee from pursuing a tort claim against their employer seeking compensation for work related injuries or death manifesting more than four years after the alleged injury inducing employment ends.
Briefly, the underlying facts are that Herold worked for the University of Pittsburgh (“the University”) as a stationary engineer from 1976 to 2004 during which time he was exposed to asbestos. In 2004, he began working as a foreman and was no longer exposed to asbestos. Herold retired from the University in 2015, and was diagnosed with mesothelioma in April 2019. Three years later, Herold succumbed to his disease on April 30, 2022. 329 A.3d 1166-1167.
After detailing the history of workers’ compensation laws, our supreme court notes “these statutory compensation systems for work-related injuries were founded upon a mutually agreeable compromise” where “workers gave up the right to sue their employers for job-related injuries and uncertain common law tort remedies in return for certain, but reduced, benefits without an assessment of fault of the employer.” Id. at 1182. In other words, the “exclusive remedy” of the ODA is bargained for between employers and employees in exchange for certain, limited recovery, against an injured worker’s employer. Id. at 1183. Ultimately, the court found its decision in Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013) (holding that the exclusivity provision of the Pennsylvania Workers’ Compensation Act does not preclude common law claims against an injured worker’s employer when the disease manifests itself outside of the limitations period to file a workers’ compensation claim) to be instructive and applicable to the instant issue. 329 A.3d at 1185.
Ultimately, the Pennsylvania Supreme Court found that the statutory construction factors weighed in “favor of interpreting the ODA’s exclusivity provision to not preclude a common law civil action against an employer for disability or death resulting from an occupational disease and which occurs four years after the last date of employment in the relevant occupation or industry.” Id. at 1191. Reading Section 1401 with Section 1403’s exclusivity provision, the Pennsylvania Supreme Court held that “to be subjected to the ODA’s exclusivity provision, an injured worker must have some potential compensation to surrender.” Id.
Justices Wecht and Brobson both filed dissenting opinions. Justice Wecht disagreed with the majority and argues that Tooey was incorrectly decided and “cannot be squared with the [ODA]’s parallel manifestation requirement, which clearly demonstrates that the legislature did intend to deny some occupational disease claimants both a civil and an administrative remedy.” Id. at 1194 (Justice Wecht, dissenting). Justice Brobson’s dissent generally agrees with Justice Wecht’s criticism of Tooey, stating that he “would take the opportunity to overrule the decision rather than rely upon it here to interpret the ODA’s similar, but distinct, provisions.” Id. at 1203-1204 (Justice Brobson, dissenting.)
The majority’s opinion echoes the prior landmark decision of Tooey and further bolsters plaintiffs’ claims against former employers arising out of latent diseases allegedly caused by exposure to toxins during their employment. Of note, the dissents are critical of both the majority’s decision and Tooey.
Now that Tooey and Herold are the law of the land in Pennsylvania, employers face uncertainty relative to potential common law tort liability to former employees who may have contracted a disability or disease during their employment but which disability or disease remains latent for more than four years after the employment ends. The question remains if the Pennsylvania will address this uncertainty by amending the Workers’ Compensation and Occupational Disease Acts.
