Pennsylvania employers are raising arguments that may circumvent the effect of the Pennsylvania Supreme Court’s decision stripping them of the protections of the Pennsylvania Workers’ Compensation Act (WCA) for latent occupational diseases.  In the November 2013 decision in Tooey v. AK Steel Corp., the Pennsylvania Supreme Court allowed former employees with occupational diseases, like mesothelioma, to sue their employers directly for diseases that manifest more than 300 weeks after employment ends.  In the wake of Tooey, employers have focused on the Pennsylvania Occupational Disease Act (ODA) arguing that it still provides administrative remedies that must be exhausted before a former employee can sue for a latent occupational disease.Pennsylvania employers contend that, despite Tooey, employees suffering from occupational diseases must exhaust their administrative remedy under the ODA before pursuing a civil remedy.

While similar to the exhaustion argument rejected in Tooey, that decision only addressed the specific exclusivity provision of the WCA, and did not address the ODA.  The argument stems from Pennsylvania’s dual occupational injury compensation claims structure.  The WCA awards benefits when a claimant has a disease or disability that directly affects the claimant’s earning power, and the ODA provides for benefits when a claimant suffers an occupational disease.  For many years, the ODA was the only statute that covered occupational diseases.  But in 1972, the definition of injury in the WCA was expanded to include compensable occupational diseases. The ODA was, however, not repealed, so now both the ODA and WCA cover occupational diseases.

Employers argue that under the ODA’s savings clause, employees still have a cognizable administrative claim that must be exhausted before filing a common law tort claim

Like the WCA, the ODA features an exclusivity provision that bars tort claims of former employees who develop occupational diseases.  Plaintiffs argued that occupational diseases manifesting after 300 weeks left them without a remedy against their employer because they were not compensable under the WCA, and the WCA prevented them from suing their employer.  Unlike the WCA, however, the ODA contains a savings clause that allows a claim for a latent occupational disease to be brought after the 300-week limitation in the WCA.  Employers argue that under the ODA’s savings clause, employees may still have a cognizable administrative claim that must be exhausted before filing a common law tort claim.

In February 2015, an Allegheny County trial judge rejected an employer’s motion for summary judgment that raised this new ODA argument, but no opinion was issued addressing the validity of the ODA argument, itself.   That same month, a trial judge in Philadelphia agreed to dismiss an asbestos claim against an employer based on the ODA argument, but the order noted that the employer’s motion was unopposed.