House panel considers workers’ comp

HARRISBURG — A bill to set ground rules for the handling of workers’ compensation cases caused by long-term exposure to asbestos and other toxic substances was debated Monday at a House committee hearing.

House Labor and Industry Committee Majority Chairman Jim Cox, R-Berks, is the prime sponsor of House Bill 1234, which he said is in response to a 2013 state Supreme Court ruling (known as the Tooey case) that allows for the potential of an employer to be sued for compensation in civil court due to claims involving occupational diseases filed 300 weeks — or five and a-half years — from the diagnosis or detection of an illness.

The court ruled that claims filed after the 300-week threshold are outside the Workers’ Compensation Act, and therefore, an employer is open to a civil lawsuit.

HB1234 would bring those types of cases into the workers’ compensation system, affirming that the workers’ compensation law is the “exclusive remedy” for any injury or disease stemming from hazardous occupational exposure whether or not the disease is compensable as an occupational hazard.

Pennsylvania’s Workers’ Compensation Act, which dates to 1915, is considered a no-fault system of compensation for employees in the event of workplace injury, death or occupational diseases. A claimant has to prove that the injury or disease is work-related to get compensation. An employer who provides workers’ compensation benefits is immune from civil liability under most circumstances.

Compensation claims are processed in a matter of days or weeks, thus providing more certainty to an employee than the tort system regarding receipt of medical treatment and fair compensation, said Cox.

The 2013 court ruling addressed a case involving John Tooey, who died of mesothelioma years after working as an industrial salesman of asbestos products.

The Tooey case addressed the offering of recourse to a legal remedy for employees whose illnesses can appear decades after they left a specific job and missed the 300-week threshold.

“It (the court) didn’t find that these injuries, having been ‘timed out’ of the Workers’ Compensation Act, were then left without a remedy. Instead, it determined that workers with these diseases could sue their employers in civil actions, effectively creating a judicial exception to the ‘grand bargain’ of the Workers’ Compensation Act where injured workers would be assured of coverage, but it would be exclusively provided under the act, not the civil tort system” said Samuel Marshall, president of the Insurance Federation of Pennsylvania.

Despite having different perspectives, representatives of business and labor interests suggested the bill’s goal of bringing these long-term cases into the workers’ compensation system could have positive benefits depending on how the bill is written.

The Tooey ruling replaced the “trade-off” of the grand bargain with employers being sued for diseases arising out of the workplace where the last exposure to the substance may have occurred decades earlier, said Kristopher A. Kachline, attorney with Swartz Cambell LLC.

These types of lawsuits can cripple a small business, said Rebecca Oyler, legislative director of the National Federation of Independent Business.

“If HB 1324 passes, and the worker may be provided a remedy through workers’ compensation, it may prevent future litigation and save this small business from the hassle of defending itself for doing nothing wrong,” she said.

“(The 300-week threshold) is a problem as occupational diseases can take well over three hundred weeks to develop. For example, a disease such as mesothelioma can develop 40 or even 50 years after a worker is exposed to asbestos,” said Robert Daley, an attorney who helped represent the Tooey family in court.

He said the bill’s use of the word “detectable” could invite disputes and litigation over when a disease started.

The important consideration is that an employee has a continuity of access either through the workers’ compensation system or a civil case, said Michael Dryden, a counsel for the Pennsyl­vania AFL-CIO, adding that the system can provide help for the greatest number of people if the bill is written right.

Marshall suggested the committee gather evidence of how many Tooey claims have been filed, how many have been paid and by what amounts.

“Back in 2013, we were expecting the floodgates to open, but that doesn’t seem to have happened,” he said.