Six years after a court ruling changed Pennsylvania's workman's compensation landscape, a panel of labor leaders and attorneys weighed in this week on whether legislative intervention is needed.
House Bill 1234, filed by House Labor and Industry Committee Chairman Jim Cox, R-Berks, would allow those affected by exposure to toxic substances to file workman’s compensation claims after the state’s Workers’ Compensation Act’s 300-week deadline.
The bill was filed in response to a 2013 Pennsylvania Supreme Court ruling in the case of Tooey vs. AK Steel that said workers who are past the 300-week threshold could file a civil lawsuit against the employer.
"Currently, occupational diseases that manifest themselves more than 300 weeks after the last date of employment are not covered under the Workers’ Compensation Act and relevant case law," Cox wrote in the co-sponsorship memo for his bill. "However, many occupational diseases, such as those associated with asbestos exposure (i.e., mesothelioma or asbestosis) often do not develop observable symptoms until many years, sometimes decades, after a worker has been last exposed – well outside the 300-week limitation."
During a committee hearing Monday, Cox said workman’s comp is a fairer way to handle claims for both the employer and the employee. Workman’s comp claims are handled more quickly than lawsuits that can drag on for years, fixing a problem created by the Tooey decision.
Michael Dryden, an attorney with the Philadelphia law firm of Willig, Williams and Davidson and counsel for the Pennsylvania AFL-CIO, said the case referred to as “Tooey” did not need to be fixed.
“Tooey corrected something that was a problem for decades,” Dryden said. “Now due to Tooey, working men and women in Pennsylvania have a continuity of access. For years prior they could be out of the comp (threshold) and not pursue a court action. A large group of workers had no remedy.”
Others told the committee the Tooey decision places an unfair burden on small businesses.
“It will be putting businesses out of business in Pennsylvania,” said Kristopher A. Kachline, attorney with Swartz Campbell LLC. “The true immeasurable impact comes from businesses that refuse to open for business in, or expand business to, Pennsylvania for refusal to do business in a state that exposes the business to liability that does not exist in any other state, save one.”
Lawmakers and panelists questioned the retroactivity in the current bill. Rep. Gerald Mullery, R-Newport Township, asked what happens to cases “already in the pipeline?”
That would bring up a constitutional issue, said Robert Daley, the attorney who argued the Tooey case.
“You are entitled to a remedy,” Daley said. “You can’t take away a constitutional right.”
The Tooey ruling did not “open the floodgates of litigation as it was feared,” Daley said, but the number of lawsuits filed is not known.
The bill is still in committee and could undergo some revisions.
“Let’s get the language right so we can get this thing fixed and do it in a responsible way,” said Rep. Cris Dush, R-Brookville.