Insight

Pennsylvania Supreme Court Overturns Employers' Workers’ Compensation Exclusivity in Latent Disease Cases 

Pennsylvania Supreme Court Overturns Employers' Workers’ Compensation Exclusivity in Latent Disease Cases 

Andrew F. Susko

Andrew F. Susko

May 9, 2019 10:04 AM

By: Kathy O'Neill, Wesley Payne, Jerry Anders and Andy Susko

On November 22, 2013, the Pennsylvania Supreme Court issued an opinion in Tooey v. AK Steel Corp., et al., holding that the exclusivity provision of the Workers Compensation Act (“the Act”) does not apply to common law third-party claims made by employees for occupational diseases which manifest outside of the 300-week period prescribed by Section 301(c)(2) of the Act. Before this week, employers were protected by the Act's exclusivity provision from third-party claims by employees. The Supreme Court's decision in Tooey ended that protection in latent disease cases. [1]

This ruling overturns recent Pennsylvania Superior Court decisions upholding the exclusivity provision of Section 303(a) of the Act in latent disease cases, and exposes companies who own, or have owned, manufacturing and other plants in Pennsylvania to third-party liability for latent disease claims made by their former employees, including claims for asbestos-related diseases and latent diseases resulting from workplace exposure to chemicals and other substances.

Tooey involved consolidated appeals of two Plaintiffs exposed to asbestos during the course of their employment who developed mesothelioma more than a decade after the conclusion of that employment. They filed lawsuits against multiple defendants, including their employers, and the employers filed motions for summary judgment asserting the exclusivity provision of the Act. [2] The trial court denied the employers’ motions for summary judgment, and, on interlocutory appeal, the Superior Court reversed, based upon its precedent upholding employer immunity under the exclusivity provision of the Act.

The Pennsylvania Supreme Court adopted the Plaintiffs’ argument that: (1) an occupational disease which first manifests more than 300 weeks after the last occupational exposure to the hazards which allegedly caused the disease does not fall within the definition of injury set forth in the Act, (2) therefore, compensation under the Act does not apply to employees seeking compensation for such diseases; and (3) accordingly, the exclusivity provision of Section 303(a) does not preclude an employee from seeking recovery for such disease through a common law action against an employer. Thus, the Supreme Court reversed the Superior Court and overturned its precedent.

This decision constitutes a major shift in Pennsylvania law. It significantly increases plant owners’ potential exposure to liability to their employees for latent diseases, and raises coverage issues under general liability and Workers’ Compensation insurance policies.

For more information regarding this News Alert, please contact Kathy O’Neill (215-864-7172; oneillk@whiteandwilliams.com), Wesley Payne (215-864-7076; paynew@whiteandwilliams.com), Jerry Anders (215-864- 7003; andersj@whiteandwilliams.com), or Andy Susko (217-864-6228; suskoa@whiteandwilliams.com)

[1] Section 301(c)(2) of the Act provides, in pertinent part:

The terms “injury,” “personal injury,” and “injury arising in the course of his employment,” as used in this act, shall include . . . occupational disease as defined in Section 108 of this act [i.e., 77 P.S. § 27.1]: Provided, That whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment in an occupation or industry to which he was exposed to hazards of such disease: And provided further, That if the employee’s compensable disability has occurred within such period, his subsequent death as a result of the disease shall likewise be compensable.

Tooey, Slip Op. at 7-8, quoting 77 P.S.§ 411(2) (emphasis added by Supreme Court).

[2] Section 303(a) of the Act provides:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1)) and (2) or occupational disease as defined in section 108.

Tooey, Slip Op. at 5, n.2 quoting 77 P.S. § 481(a)

Related Articles

New Employment Law Recognizes Extraordinary Stress Is Everyday Reality for NY Lawyers


by Bryan Driscoll

A stressed woman has her head resting on her hands above a laptop

A Guide to Workers' Compensation Law for 2025 and Beyond


by Bryan Driscoll

A woman with a laptop screen reflected in her glasses

IN PARTNERSHIP

Important Information for Pennsylvania Injured Workers


by James B. Mogul

Lawyer James B. Mogul of Lowenthal & Abrams, P.C. is offering important information to Pennsylvania workers who are facing workers' compensation cases.

Important Information for Pennsylvania Injured Workers

Announcing the 2022 Best Lawyers: The Employment Law Issue


by Best Lawyers

Featuring the top legal talent from The Best Lawyers in America, Best Lawyers: Ones to Watch in America and “Lawyer of the Year” recipients for Labor and Employment Law, Workers’ Compensation Law, ERISA Law and Ethics and Professional Responsibility Law.

Best Lawyers Employment Law Publication

One Reason Why Uber Is Fighting to Classify Drivers as Contractors


by Stephen Hasner

How Workers' Compensation Is Setting Up a Legal Battle

 Why Uber Wants Drivers as Contractors

Teamwork and Strategy


by Justin Smulison

In 2018, Block O'Toole & Murphy continued to secure multimillion-dollar results for injured victims and workers.

Block O'Toole & Murphy Gets Results

Pennsylvania Supreme Court Issues Landmark Workers’ Compensation Decision


by Dave Brown

The claimants’ workers’ compensation bar in Pennsylvania scored a significant victory when the state’s high court issued its decision in Protz v. WCAB.

Pennsylvania Workers' Comp

The Workers’ Compensation System as a Prescription for Addiction


by Karen Gail Treece

While estimates vary, it is believed that the top 5 percent of opioid users likely account for more than half of total opioid use.

Prescription for Addiction

Colorado Broadens Scope of Workers’ Comp, but There’s More to Be Done


by Nick Fogel

When the law goes into effect in July, Colorado will join 32 other states in allowing PTSD claims for first responders without a physical component to the claim.

Colorado Workers' Compensation

Key Minnesota Workers’ Compensation Cases of 2017


by Thomas P. Kieselbach

A rundown of important workers' compensation cases in Minnesota over the past year.

Minnesota Workers' Compensation

Trending Articles

Introducing the 2026 Best Lawyers Awards in Australia, Japan, New Zealand and Singapore


by Jennifer Verta

This year’s awards reflect the strength of the Best Lawyers network and its role in elevating legal talent worldwide.

2026 Best Lawyers Awards in Australia, Japan, New Zealand and Singapore

Effective Communication: A Conversation with Jefferson Fisher


by Jamilla Tabbara

The power of effective communication beyond the law.

 Image of Jefferson Fisher and Phillip Greer engaged in a conversation about effective communication

Paramount Hit With NY Class Action Lawsuit Over Mass Layoffs


by Gregory Sirico

Paramount Global faces a class action lawsuit for allegedly violating New York's WARN Act after laying off 300+ employees without proper notice in September.

Animated man in suit being erased with Paramount logo in background

The Future of Family Law: 3 Top Trends Driving the Field


by Gregory Sirico

How technology, mental health awareness and alternative dispute resolution are transforming family law to better support evolving family dynamics.

Animated child looking at staircase to beach scene

The 2025 Legal Outlook Survey Results Are In


by Jennifer Verta

Discover what Best Lawyers honorees see ahead for the legal industry.

Person standing at a crossroads with multiple intersecting paths and a signpost.

Safe Drinking Water Is the Law, First Nations Tell Canada in $1.1B Class Action


by Gregory Sirico

Canada's argument that it has "no legal obligation" to provide First Nations with clean drinking water has sparked a major human rights debate.

Individual drinking water in front of window

New Mass. Child Custody Bills Could Transform US Family Law


by Gregory Sirico

How new shared-parenting child custody bills may reshape family law in the state and set a national precedent.

Two children in a field holding hands with parents

The Best Lawyers Network: Global Recognition with Long-term Value


by Jamilla Tabbara

Learn how Best Lawyers' peer-review process helps recognized lawyers attract more clients and referral opportunities.

Lawyers networking

Jefferson Fisher: The Secrets to Influential Legal Marketing


by Jennifer Verta

How lawyers can apply Jefferson Fisher’s communication and marketing strategies to build trust, attract clients and grow their practice.

Portrait of Jefferson Fisher a legal marketing expert

Finding the Right Divorce Attorney


by Best Lawyers

Divorce proceedings are inherently a complex legal undertaking. Hiring the right divorce attorney can make all the difference in the outcome of any case.

Person at a computer holding a phone and pen

New Texas Law Opens Door for Non-Lawyers to Practice


by Gregory Sirico

Texas is at a critical turning point in addressing longstanding legal challenges. Could licensing paralegals to provide legal services to low-income and rural communities close the justice gap?

Animated figures walk up a steep hill with hand

The Future of Canadian Law. Insights from Best Lawyers: Ones to Watch Honorees


by Jennifer Verta

Emerging leaders in Canada share their perspectives on the challenges and opportunities shaping the future of Canadian law

Digital eye with futuristic overlays, symbolizing legal innovation and technology

Is Your Law Firm’s Website Driving Clients Away?


by Jamilla Tabbara

Identify key website issues that may be affecting client engagement and retention.

Phone displaying 'This site cannot be reached' message

Family Law Wrestles With Ethics as It Embraces Technology


by Michele M. Jochner

Generative AI is revolutionizing family law with far-reaching implications for the practice area.

Microchip above animated head with eyes closed

A Guide to Workers' Compensation Law for 2025 and Beyond


by Bryan Driscoll

A woman with a laptop screen reflected in her glasses

Best Lawyers Launches CMO Advisory Board


by Jamilla Tabbara

Strategic counsel from legal marketing’s most experienced voices.

Group photo of Best Lawyers CMO Advisory Board members