Behrens Examines PA Workers' Comp Act in Asbestos-Related Disease Claims

Shook, Hardy & Bacon Public Policy Group co-chair Mark Behrens was quoted in a September 20 article in The Pennsylvania Record, “Asbestos Attorneys: Supreme Court Decision Hasn’t Brought Flood of Suits Against Employers.”

A 2013 Pennsylvania Supreme Court decision, Tooey v. AK Steel Corp., allows individuals with workplace injuries to bring personal injury lawsuits against their employers for latent injuries manifesting beyond the period in which such claims are covered by the state’s Workers’ Compensation Act. As such, employers could potentially be held liable for injuries, including asbestos-related illnesses, which have a long latency period.

“One of the trends in the last few years has been that in trying to identify solvent potential defendants, plaintiffs’ lawyers are challenging the exclusive remedy provision of state (Workers’ Compensation) laws to try to bring employers into the asbestos litigation.” Behrens says. “The Supreme Court of Pennsylvania in the Tooey case said that, because Pennsylvania’s Workers’ Compensation statute does not provide a recovery for occupational diseases that take many years to develop, such as with asbestos, the legislature must have intended to allow personal injury cases to fill that gap.”

Behrens discusses states’ disparate treatment of asbestos-related cases, saying that the possibility that employers can be sued “depends on how the state Workers’ Comp laws are written.”