Employer Liability in Pennsylvania after Herold v. University of Pittsburgh (Podcast)

In this episode, John Maher talks with attorney Paul Kelley of Satterley & Kelley about the landmark Harold v. University of Pittsburgh case and its impact on employer liability in Pennsylvania. The decision builds on the earlier Tooey case, confirming that workers diagnosed with diseases like mesothelioma outside the Occupational Disease Act’s four-year limit can still pursue negligence claims against employers. Kelley explains how the court’s ruling ensures workers aren’t left without a remedy, outlines the differences between tort and workers’ compensation claims, and emphasizes the urgency of seeking legal help after a diagnosis due to strict time limits for filing. The episode highlights the legal complexities and critical steps workers should take when faced with long-latency occupational illnesses.

John Maher: Hi, I’m John Maher and I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm, Satterley & Kelley, which has over 45 years of collective experience in litigating mesothelioma and asbestos claims. Today we’re talking about employer liability in Pennsylvania after Harold versus University of Pittsburgh. Welcome, Paul.

Paul Kelley: Hey, John. How are you doing today?

Maher: I’m doing well, thanks. How are you?

Kelley: Doing great, thank you.

How Does Harold v. University of Pittsburgh Clarify the Law?

Maher: So, Paul, how does the Harold versus University of Pittsburgh case clarify the scope of Pennsylvania’s Occupational Disease Act or ODA, particularly regarding when a employer’s exclusive remedy protection no longer applies?

Kelley: Sure, John. It’s a little complicated in how they got there, so we’ll try to keep it as simple as possible. Pennsylvania has really two statutes that apply to occupational diseases. We deal a lot with mesothelioma. There are lots of occupational diseases that have been certainly caused within the workplace, but we talk a lot about mesothelioma, which is an asbestos-related disease.

And so, Pennsylvania has the Workers’ Compensation Act and it has the Occupational Disease Act. And to be perfectly honest, I don’t know why there’s both, but they both apply to people who are injured in the workplace and they provide an ability for those people to obtain compensation for a work-related injury, a work-related disease.

And that’s to distinguish between somebody’s hand that’s smashed in a machine or breaks a leg. This is someone who suffers a usually life-threatening disease that was caused by workplace exposure and now they have an ability to get compensation for that.

The Herold case is actually kind of built up from a case called Tooey back in 2015, I believe, which addressed the Workers’ Compensation Act. The Herold case addresses the Occupational Disease Act. And without getting too far in the weeds, in the Tooey case, the issue in Tooey was under the Pennsylvania Workers’ Compensation Act. The employee had to file a case, a workers’ compensation claim against their employer, and they had to do that within 300 weeks of their last exposure to asbestos. If you do the math, that’s like six years, six years or so. And typically speaking, asbestos diseases take a lot longer than six years to manifest. In most instances, it’s going to be 35, 40, 50 years. Certainly the reported literature says no less than 10 and usually no less than 20.

And so, the big concern was in the Tooey case years ago is what happens to those people who are diagnosed with this disease 10, 12, 20, 30 years after their last exposure? Can they file a workers’ compensation claim? And the answer was no. They can’t file a workers’ compensation claim.

So, what do they do? And the Tooey decision said for those people who can no longer file a workers’ compensation claim and get compensated within that system, they can now pursue a lawsuit, a tort claim, a negligence claim against their employer. And that’s been the law in Pennsylvania for over 10 years now.

Maher: Okay.

Kelley: Well, fast-forward to the Herold case. And the Herold case, again was brought in part pursuant to the Occupational Disease Act. The Occupational Disease Act has a little bit shorter period of time for which it applies. And instead of the 300 weeks, it was four years. And so that means four years from the last exposure. And if the disease manifests greater than that four years, then people would not be able to pursue, again, a claim within the workers’ compensation scheme. And that’s where Occupational Disease Act claims had to be pursued.

And so, that was obviously a significant limitation. So, ultimately the plaintiffs in that case challenged and they certainly wanted the same logic as the Tooey decision to apply. If the four-year limitation occurs and it excludes a case under the Occupational Disease Act, can we pursue a tort claim? And in this instance, University of Pittsburgh was the defendant, not to single out University of Pittsburgh, there were certainly a lot of employers out there that challenged this and didn’t want the same Tooey logic or rationale to apply in this context, but that’s who the defendant was in this case.

And they vehemently argued, you know, look, Tooey shouldn’t apply. This is a different act and there are different standards that are applicable. And at the end of the day, if your case manifests greater than the four years, then we don’t have to pay you within the tort system.

Fortunately, the Supreme Court decided that the language compensability in the Occupational Disease Act was really important. The Occupational Disease Act essentially said, your injury, if it’s not compensable or it’s not compensable, excuse me, your injury is not compensable under the Occupational Disease Act if it manifests greater than four years from that last exposure. And the Supreme Court or the state’s highest court said, well, the problem with that is if it’s not compensable, then people should be able to still pursue a tort case.

And again, there are significant differences between pursuing a case under the ODA and pursuing a case in the tort system. And the tort system, you have to put in fault. And that’s a big deal because these employers, and quite frankly, any asbestos defendant that I’ve ever dealt with, they have never conceded fault ever. They always fight for whatever reason, blame some other exposure or indicate that they didn’t know. So, employees are now kind of put into this situation where they have to prove that fault.

But what it does do is it ensures that there’s no lapse in the ability for the employee to get some remedy from an employer or any responsible party under the ODA for causing their injury. Previously, that could have been a problem. And so, really in my view, Herold just built upon Tooey and made clear that in Pennsylvania, protecting employees is very important. Making sure that employees have the ability to seek compensation and obtain compensation from someone or some entity, their employer who caused an injury, that they still have the ability to be able to do that and that there’s no limitations. There’s no somehow gap where the employee is just left out in the cold.

Impact on People with Diseases with Long Latency Periods

Maher: So, the ruling noted that illnesses with very long latency periods like mesothelioma were effectively excluded from the ODA remedies if they manifested after four years, like you said. How did the court address the possibility that workers who would miss the ODA’s deadline might otherwise have no remedy at all? And what do we mean by that, by no remedy?

Kelley: Yeah, so that was the problem. And the issue was that what Pittsburgh wanted in this example was to say if your disease occurred more than four years after your last exposure, then you’re just out of luck. There’s no remedy under the ODA, there’s no remedy anywhere, and we don’t have to pay anything. You don’t get anything. And the Pennsylvania’s high court had a problem with that and said, we can’t endorse a system that leaves employees without any kind of remedy.

Maher: Especially for a case like that where it’s well known that something like mesothelioma can take decades to manifest itself. And anybody looking at that would say, “That doesn’t sound fair.”

Kelley: Absolutely. I mean, again, as we’ve discussed, I mean these diseases, I mean, they rarely occur within 30 years from the last exposure. As people get older, I mean, we see people 40, 50 years following their last exposure, and there wouldn’t be any ability whatsoever to do anything. And for that subset of people whose disease happens to be diagnosed within that four year period of time, they can get compensation through the ODA.

But if Pittsburgh’s, the employer’s interpretation was correct, then people that were diagnosed five years later would be left with nothing. And the court, the Supreme Court couldn’t come up with a fair ruling that avoided what the purpose of all these legislative enactments were.

The purpose of the ODA and the Workers’ Compensation Act was to make sure that employees get compensation for injuries they suffer as a result of work. And it just made no sense legally or practically to eliminate their ability to get compensation for a work-related injury if we interpreted the statutes in a way that was going to eliminate that simply because of timing, simply because one person got it within, one person got it without.

Same exact people, same exact exposures, and one person’s left with a remedy and one person’s left without. That was patently unfair and it did not give proper recognition and support for the purpose behind the statute.

What Practical Steps Should Someone with These Illnesses Take?

Maher: Right. So what practical steps or considerations would you advise for someone who suspects that they have a latent occupational illness and they’re unsure whether or not it falls under the ODA or whether or not they have a viable negligence claim against a former employer?

Kelley: Sure. Certainly I think the only way that people can truly figure it out is to speak with a lawyer who has experience with these cases and understands the nuances. It can very well be that there are still some people that come within the ODA or the Workers Compensation Act, and their only remedies are to pursue within that system, and there’s going to be other people that will fall outside of it and be able to pursue tort claims.

But I think it’s important to quickly consult with an attorney, give the attorney all of the facts that you’re aware of, where did you work, all the places you worked, where are your possible last periods of exposure? Because it’s not where you worked last or when you worked last, it’s when your last exposure was. So somebody might have retired five years ago, but their last exposure was 12 years ago, 15 years ago, 30 years ago. That’s going to make a difference as to whether they have to pursue their case within the Workers’ Comp Act or the ODA or whether they have to pursue their case within the tort system.

And again, there’s going to be differences in what you’re entitled to. Potentially there’s going to be differences in how you obtain compensation. The ODA and the Workers Compensation Act are more not fault related. Was there an asbestos exposure and was your disease caused by that asbestos exposure? The question’s limited in a workers comp type situation. And then the damages are typically going to be medical expenses and lost income.

For a tort claim, the injured employee has to prove that the employer did something wrong, not just that there was asbestos there, not just that they suffered an exposure, but they have to prove that in some way the employer was negligent. That negligence could be they forced the employees to work with asbestos, or they forced the employees to work around asbestos, or there was asbestos present that they failed to warn about or failed to eliminate.

There’s lots of different ways that employers can be negligent, but it still falls on the employee to prove that negligence and then they have to prove that they have damage or that that negligence caused their disease. And they have to prove that they suffered damages as a result of the negligence. And in some circumstances they have to prove that other parties either weren’t at fault or maybe that other parties were at fault, but so is your employer.

So, it gets a little bit complicated. It tends to be more time-consuming to pursue a tort case. It’s definitely more expensive to pursue a tort case. Your lawsuit is going to be typically decided by a jury. Your workers’ comp claims, and those kinds of claims are typically going to be decided by an administrative law judge.

So, there are big differences in how those schemes work, but the moral of the story is that given the significance of the disease, mesothelioma is a terminal disease. In most instances people typically have a six month to 18 month life expectancy. Some people more, some people less, but those are the averages. And we don’t know who’s going to fall into which category. And some people may suffer some negative consequences a lot quicker.

So, it’s really important to determine what your rights are early on and try to hit the ground running and hire attorneys that are prepared to do that. We have a lot of experience, there’s a lot of certainly other attorneys that do what we do, but we certainly have a lot of experience and are prepared to ask the right questions and get the information necessary to pursue a claim. But regardless of what you do when you get this disease, you should do it quickly.

What Time Limitations Are There?

Maher: Right. Regardless of whether or not it’s been four years since your last exposure or more than four years, you still have a limited amount of time after you find out that you have this disease to pursue a claim. Right?

Kelley: Absolutely. Absolutely. And a matter of a couple of years and that’s just not enough time in a lot of instances, particularly if every case we had to wait a year, year and a half to file a case, there would be a significant set of our clients that unfortunately would not make it to a deposition, wouldn’t make it to trial. And all of those things matter.

We want you to be able to testify and certainly we want you to be able to tell the jury and the judge and the defendants how you’re exposed, but we really want for you to be able to tell everybody how this has impacted you, because that’s as important as anything. And lots of times our clients find that that’s really what they want. They want to be able to explain to the wrongdoers that this cancer has been devastating and it’s impacted, you know, my life and it’s impacted my family’s life.

So, being able to get our client to that position is really our primary goal. And so being able to move as quickly as possible gives us the best chance to help you and help your family, and hopefully not just get you the compensation that you need, but to be able to explain to the world and tell them what they did to you.

Maher: All right. Well, that’s really great information, Paul. Thanks again for speaking with me today.

Kelley: Thank you, John.

Maher: And for more information about mesothelioma and asbestos exposure, visit the law firm of Satterley & Kelley at satterleylaw.com or call (855) 385-9532.