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Tort liability of employer for late-manifesting occupational disease

In Tooey v. AK Steel Corp., the Supreme Court of Pennsylvania, in a 5-1 split decision, ruled that the state’s workers’ compensation laws do not apply to latent occupational diseases that manifest outside of 300 weeks after the last date of employment. As a result, said the court, workers and their families are not procedurally barred in such cases by exclusive remedy provisions of the Workers’ Compensation Act from filing a common-law claim against an employer.

Workers’ compensation laws provide compensation to employees who are disabled due to a work-related injury or disease for the employee’s lost wages and necessary medical treatment. The statutory scheme is mandatory in Pennsylvania. The program provides an employer-financed system of no-fault insurance designed to promote safety in the workplace and prompt resolution of claims in a manner that is cost-efficient to all parties.

In all states, including Pennsylvania, the workers’ compensation statutes contain an “exclusive remedy” provision, stating that an employee’s remedy against his or her employer for occupational injuries or illnesses is limited to the benefits that are provided under the workers’ compensation laws. In some cases, courts have carved out exceptions to the exclusive remedy rule.


The Tooey decision was based on a review of two consolidated appeals. In the first case, the employee was exposed to asbestos dust while working as an industrial salesman of asbestos products from 1964 until 1982. He developed mesothelioma in 2007, and died within a year after that.

In the second case, the employee, diagnosed in 2007 with asbestos mesothelioma, was exposed to asbestos during his employment from 1946 until 1992.

In 2008, the former employees and their spouses filed separate personal injury suits against multiple defendants, including their respective former employers. The trial court denied summary judgment motions filed by the former employers, who argued that dismissal of the claims against them was required under the workers’ compensation exclusivity bar.

The former employers appealed. The Superior Court reversed, holding that it was bound by precedents from prior court decisions which held that the exclusivity bar was applicable even if an occupational disease manifests more than 300 weeks after the last date of employment.

The Supreme Court’s decision

The majority opinion interpreted the language of the state’s exclusive remedy provisions to mean that in cases involving a work-related disease, the workers’ compensation act applies “only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment.” The majority held that the Act’s remedial purpose supported this interpretation, because any other interpretation would effectively deny an employee any remedy against an employer. The court stated that mesothelioma does not develop until decades after an employee has been exposed to asbestos, as the disease has an average latency period of 30 to 50 years. A 300-week time limit in which to file a claim would, in effect, exclude coverage under the Act for practically all mesothelioma claims. “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,” the court wrote.

Workers’ compensation matters can involve complex legal issues. Individuals seeking relief under the workers’ compensation laws are urged to consult the professional services of a competent attorney who is experienced in such matters to ensure that their rights are fully protected.