PA Update – Decision Regarding the Appeal of the University of Pittsburgh in Estate of William L. Herold v. University of Pittsburgh
On February 16, 2023, the Commonwealth Court of Pennsylvania issued its decision on the appeal of the Allegheny County summary judgment ruling in Estate of William L. Herold v. University of Pittsburgh from May 17, 2021. The Court of Common Pleas of Allegheny County denied the University of Pittsburgh’s motion for summary judgment, which was predicated on the theory that the trial court lacked subject matter jurisdiction. The Commonwealth Court has now affirmed the trial court’s decision, finding that it did not err in denying summary judgement to the University.
The Commonwealth Court certified the following issues for appeal: “Whether the trial court erred or abused its discretion in exercising subject matter jurisdiction over, and refusing to dismiss or stay, Herold’s common law claim against the University of Pittsburgh 1. Where Herold has been diagnosed with asbestos related mesothelioma, an occupational disease as defined in the [ODA], Act of June 21, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1603, and 2. Herold failed to provide the workers’ compensation authorities an opportunity to determine whether Herold’s claims are within the exclusive remedied of the [ODA].”
The trial court denied the University’s motion because it found that 1. The ODA defines an occupational disease as occurring within four years of the last exposure 2. Herold’s last exposure to asbestos was 15 years prior to his mesothelioma diagnosis and 3. The ODA’s Savings Clause which provides additional relief past the four-year period for certain diseases, was inapplicable.
In Footnotes 8 and 9 of the opinion, the Court notes that the appeal is limited to the applicability of the Occupational Disease Act (ODA) exclusivity provision (not inclusive of the Workers’ Compensation Act (WCA)) and that the trial court did err in its interpretation of the definition of occupational disease. The Court states that the WCA’s exclusivity provision is only applicable within the statutorily defined 300-week limitation period. The Court further states that occupational disease is defined in Section 108 of the ODA with a list of enumerated diseases and a catch all definition in Section 108(n). The trial court relied on Section 301(c), a section which defines a limitations period for compensation under the ODA. Section 108 does not include mention of a time period for occurrence of disease, while Section 301(c) includes a four-year period.
Mr. Herold worked as an engineer at the University of Pittsburgh from 1976-2015. Mr. Herold was diagnosed with mesothelioma in April 2019, 15 years after his last exposure to asbestos, as Mr. Herold was last exposed to asbestos at the University in 2004. As such, the University argued that his occupational disease was subject to the exclusive jurisdiction of the Workers Compensation Board. The University attempted to distinguish Tooey v. AK Steel Corp., 1 A.3d 851 (Pa. 2013) in which the Supreme Court recognized an exception to the exclusivity provided in the WCA. The University also argued that an exception to the workers’ compensation system would be unfair as some plaintiffs could seek civil remedies, while others would not and the employers who have paid for insurance would risk uncertainty in risk of litigation. Further, the University argued that regardless of an exception to the ODA, one such as Herold must first seek remedy from the Workers Compensation Board as primary jurisdiction for a claim regarding occupational disease and adjudication of any related civil matter should be stayed during that time. The University additionally argued that the trial court made factual findings rather than deferring to the Workers Compensation Board, which the Court states is without merit. The University stated that the trial court erred by finding that ODA is a chapter of the WCA and that considering the limited compensation available under the ODA, the Court states that these findings are harmless errors.
Plaintiff argued that the Court should follow the analysis of the Tooey Court as the WCA and ODA exclusivity provisions are similar, and the ODA only applies to compensable occupational diseases which cause death or total disability within four years of exposure. Plaintiff asserts that latent mesothelioma is outside of this purview and as such lack a statutory remedy. The Court states that Plaintiff additionally asserted that Section 108 of the ODA does not specifically include mesothelioma and the University was required to introduce evidence to meet the three-prong test in Section 108(n) of the ODA. The Court rejected this argument as hyper-technical but concedes that the ODA does not define mesothelioma as an occupational disease but states that it is “indisputable” that mesothelioma would qualify as an occupational disease under Section 108(n).
In its analysis, the Court addresses 1. The exclusivity of WCA and ODA 2. The Tooey analysis of WCA 3. The applicability of Plaintiff’s claims under the ODA exclusivity provision and 4. The doctrine of primary jurisdiction. The Court finds the Tooey analysis persuasive and concludes that the legislature did not intend for employees suffering from an occupational disease manifesting beyond the four-year limitation period to surrender their rights found within the exclusivity provision. The Court determined that Plaintiff is not required to first present his claims to the Workers Compensation Board and states that where Plaintiff’s occupational disease is diagnosed more than four years after their last workplace exposure, a civil claim may proceed, and a fact finder may determine the sufficiency of evidence of the latent disease.
In its conclusion to the opinion, the Court clearly states that a cognizable exception to the ODA exclusivity provision exists where an employee is diagnosed with an occupational disease more than four years after the employee’s last workplace exposure to the hazards of that disease and under such circumstances, the employee may commence civil proceedings in an appropriate court.
