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Saturday, November 30, 2013

Pennsylvania Supreme Court Rules Exclusivity Doctrine Not a Bar to Asbestos Claim Against an Employer Directly If Late Manifestation

The Pennsylvania Supreme Court permitted a civil action to go forward against an employer where the employee was exposed to asbestos fiber and contracted mesothelioma. The Court ruled that the latent manifestation, after the 300 week statutory period had lapsed and the Exclusivity Doctrine was not applicable.

The court held, "that claims for occupational disease which manifests outside of the 300-week period prescribed by the Act do not fall within the purview of the Act, and, therefore, that the exclusivity provision of Section 303(a) does not apply to preclude an employee from filing a common law claim against an employer."

Tooley v AK Steel Corporation
No. 21 WAO 2011, No. 22 WAP 20111, No. 23 WAP 2011
2013 Pa. LEXIS 2816
Decided: November 22, 2013

Ed Note: My thanks to Judge David B. Torrey for sharing this decision. Note the reference in the  Dissenting Opinion of Mr. Justice Saylor:
"8 David B. Torrey & Andrew E. Greenberg, Pennsylvania
Workers' Compensation Law & Practice §14.10 (3d ed. 2011) (expressing that Section 301(c)(2)'s time 
limitation constitutes a "substantive prerequisite to ascertainment of the compensability," intended 
to "establish, via arbitrary time basis, some outside limit to govern the potential  [*64] liability of the 
employer"). Accordingly, I would hold that the 300-week limitation in Section 301(c)(2) has no effect on 
whether a worker's occupational disease comes within the WCA's coverage. As such, the exclusivity 
mandate appearing in Section 303(a) of the statute applies, in my view, to preclude Plaintiffs from 
maintaining a negligence-based lawsuit against Employers.16"

Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.