WORKERS’ COMPENSATION-EXCLUSIVITY-OCCUPATIONAL DISEASE-THIRD PARTY ACTION

Herold v. Univ. of Pitt., 2023 Pa. Commw. LEXIS 16 (February 16, 2023) (Dumas, J.)  The University of Pittsburgh (University) appeals from the Order entered by the Court of Common Pleas of Allegheny County (trial court) on May 17, 2021, which denied the University summary judgment. The University asserts that the common law claims of William L. Herold, which relate to his workplace exposure to asbestos and development of mesothelioma, fall within the purview of The Pennsylvania Occupational Disease Act (ODA). Thus, according to the University, Herold must file his claims with the Workers’ Compensation Board (Board).  Upon review, we conclude that an occupational disease that manifests more than 4 years after an employee’s last exposure to hazards causing that disease is not subject to the exclusive remedy mandate of the ODA. Further, we reject the University’s invocation of the doctrine of primary jurisdiction, which may otherwise require Herold to seek relief from the Board in the first instance. Therefore, we affirm the trial court, albeit on different grounds, and remand so that Herold may proceed with his common law claims against the University. The WCA and ODA together provide a comprehensive, no-fault system of compensation for employees injured in the course of their employment. Barber v. Pittsburgh Corning Corp., 521 Pa. 29, 555 A.2d 766, 769 (Pa. 1989); Wagner v. Nat’l Indem. Co., 492 Pa. 154, 422 A.2d 1061, 1065 (Pa. 1980). Both acts include similar exclusivity provisions that reflect the historical quid pro quo between employers and employees. Barber, 555 A.2d at 769; compare Section 303(a) of the WCA, 77 P.S. § 481, with Section 303 of the ODA, 77 P.S. § 1403. Under this system, “both the employer and employee relinquish[] certain rights to obtain other advantages.” Wagner, 422 A.2d at 1065. In exchange for immunity from civil lawsuits by injured employees, and all the risks and costs associated with such suits, the employer ensures certain and reasonable compensation to injured employees. Barber, 555 A.2d at 769; Wagner, 422 A.2d at 1065. On the other hand, employees need not prove an employer’s negligence but “must accept limited, though certain, recovery.” Wagner, 422 A.2d at 1065. Thus, the exchange benefits both parties. In conclusion, the ODA remains an integral part of a comprehensive, no-fault system of compensation for employees that suffer disability or death in the course of their employment. Generally, in exchange for reasonable and certain compensation administered by the Board, an employee surrenders the rights to pursue compensation in a manner of the employee’s choosing. However, absent compensable disability or death, the employee has not surrendered these rights. Thus, we recognize an exception to the exclusive jurisdiction of the Board to adjudicate claims asserted by an employee diagnosed with an occupational disease more than 4 years after the employee’s last workplace exposure to the hazards of that disease. Finally, because the issues relevant to the latency of an employee’s occupational disease are not peculiarly within the Board’s expertise, the employee may commence civil proceedings in an appropriate court of original jurisdiction. Order affirmed. Case remanded to the trial court for further proceedings. Jurisdiction relinquished.