Occupational Disease Act; Exclusivity Provision; Disease that manifests more than 4 years after last exposure; Primary jurisdiction
In Re: Estate of Herold, 291 A.3d 489 (Pa. Cmwlth. 2023), allocatur granted Oct. 13, 2023, appeal docket 22 WAP 2023
William Herold was employed by the University of Pittsburgh, from 1976 until he retired in 2015, as a stationary engineer. During his employment, he was exposed to asbestos until 2004. In April 2019, approximately 15 years after his last exposure to asbestos, he was diagnosed with mesothelioma, a cancer in the lining of the lung. Expert evidence attributed the cause of Herold’s mesothelioma to his asbestos exposures. Herold sued in the trial court to recover damages. The trial court denied the University’s motion for summary judgment in which the University argued that:
- Herold’s claims are covered by the Occupational Disease Act (ODA),
- Section 303 of the ODA, 77 P.S. § 1403, the ODA’s exclusivity provision, limits compensation for an occupational disease as provided under the ODA,
- the Workers’ Compensation Appeal Board has exclusive jurisdiction over Herold’s claims, and
- even if the ODA’s exclusivity provision does not apply (because the ODA defines an occupational disease as one that occurs within 4 years of last exposure to the hazards of a covered disease and here, Herold’s disease is alleged to have manifested more than 4 years after his last exposure) the doctrine of primary jurisdiction requires judicial abstention – i.e., staying adjudication of Herold’s civil claims pending exhaustion of an administrative action under the ODA before the Workers’ Compensation Appeal Board to determine whether in fact Herold’s mesothelioma manifested more than 4 years after his last workplace exposure to asbestos.
The Commonwealth Court granted the University’s petition for permission to appeal the interlocutory order denying summary judgment and, after review, affirmed the trial court’s denial of summary judgment and retention of jurisdiction.
The Court first concluded that “the exclusive remedy mandate [of the ODA] extends only to those claims asserting compensable disability or death resulting from occupational disease and manifesting within 4 years after the last workplace exposure,” Slip op. at 22, such that “the legislature did not intend for employees suffering from an occupational disease that manifests outside the ODA’s 4-year limitations period to surrender their rights as indicated in the ODA’s exclusivity provision.” Id. at 23. The Court reached this conclusion on the basis of two exercises of statutory construction. First, the Court interpreted the phrase “compensable disability or death” in the ODA in the same way that the Supreme Court interpreted a similar definition in the Workers’ Compensation Act in Tooey v. AK Steel Corp., 623 Pa. 60, 81 A.3d 851 (2013), to mean “compensable disability or death (1) resulting from occupational disease and (2) manifesting within 4 years after the last workplace exposure.” Slip op. at 17. Second, the Court applied this definition to the ODA’s exclusivity provision, which states:
Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights [1] to any form or amount of compensation or damages for any disability or death resulting from occupational disease, or [2] to any method of determination thereof, other than as provided in article three of this act. Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife, or husband, widow or widower, next of kin, and other dependents.
77 P.S. § 1403.
As the Court explained, based on the definition of “compensable disability or death,” the exclusive remedy mandate extends only to those claims asserting compensable disability or death resulting from occupational disease and manifesting within 4 years after the last workplace exposure:
In furtherance of the quid pro quo implicit to the workers’ compensation system, and except as otherwise provided in the ODA, Section 303 requires that an employee surrender two rights: (1) the right to compensation for disability or death resulting from occupational disease and (2) the right to select a method of securing compensation for disability or death. See 77 P.S. § 1403. As we have discussed, supra, Section 301(c) defines “compensable disability or death” in clear and unambiguous terms, and that definition includes a temporal limitation. Applying that definition here, we conclude that the exclusive remedy mandate extends only to those claims asserting compensable disability or death resulting from occupational disease and manifesting within 4 years after the last workplace exposure. See Summit Sch., Inc., 108 A.3d at 196; 1 Pa. C.S. §§ 1903(a), 1921(b).
This reasonable interpretation does not eliminate per se the distinction between coverage and compensation in the ODA for claims involving latent occupational diseases, but it does recognize an exception to the exclusive remedy mandate of the workers’ compensation system. Absent compensable disability or death as defined by the ODA, an injured employee has not surrendered the rights to pursue compensation in a manner of their choosing. Therefore, we hold that the exclusivity provision does not apply to Herold’s claims, and the Board lacks exclusive jurisdiction to adjudicate these claims.
Slip op. at 21-22.
Acknowledging that neither Herold nor the University addressed Section 1403 in their arguments, the Court observed that both had relied on policy considerations in supporting their positions, and so looked to those arguments on the assumption that Section 1403 could be viewed as ambiguous, and found policy considerations supportive of its conclusion:
The policy considerations voiced by our Supreme Court in Tooey are persuasive. See Tooey, 81 A.3d at 860-65. Clearly, the Court has rejected any construction that grants full immunity to employers, leaving injured employees without an opportunity for reasonable compensation for their injuries. Id. at 864. This would do irreparable harm to the basic compromise inherent to the workers’ compensation system. Further, the Court has rejected concerns for the financial implications of permitting certain limited claims to proceed in the courts of common pleas. Id. at 865-66. As the Court concluded, it would be inconceivable that the legislature intended to leave those employees who have suffered the most without any redress under the workers’ compensation system or at common law. Id. at 864.
For these reasons, we reject the University’s policy arguments against a Tooey-type exception for claims involving latent occupational diseases. See Univ.’s Br. at 15-18. Considering the remedial purpose of the ODA and the consequences of denying Herold and others like him any chance for compensation, we conclude that the legislature did not intend for employees suffering from an occupational disease that manifests outside the ODA’s 4-year limitations period to surrender their rights as indicated in the ODA’s exclusivity provision.
Slip op. at 23.
Turning to the University’s primary jurisdiction argument, the Commonwealth Court reasoned that the purpose of the primary jurisdiction doctrine is to take advantage of an administrative agency’s “special experience and expertise in complex areas with which judges and juries have little familiarity,” but that the determination whether Herold’s mesothelioma manifested more than 4 years after his last workplace exposure to asbestos is one that is “commonplace in civil trials.” Slip op. at 24. “For these reasons” the court concluded, “we discern no appreciable benefits in requiring the trial court to stay proceedings and transfer the matter for initial review by the Board, which would then be required to transfer the matter back to the trial court if it found Herold’s latency evidence sufficient. Slip op. at 25.
The Supreme Court granted the University’s petition for allowance of appeal. The issue, as stated by Petitioner, is:
Whether the Commonwealth Court opinion:
(A) conflicts with other appellate court decisions, in that it:
(1) fails to overrule the [t]rial [c]ourt’s determination that the [t]rial [c]ourt, rather than the workers’ compensation authorities, has subject matter jurisdiction over Mr. Herold’s asbestos-related occupational disease claim against his employer under the ODA, and
(2) fails to uphold the express language of the Pennsylvania Occupational Disease Act, including its exclusive remedy provision; and
(B) presents questions of substantial public importance that require prompt and definitive resolution by the Supreme Court of Pennsylvania.
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