In Weddle v. BP Amoco Chemical Co., the Superior Court of Delaware addressed an issue of first impression as to whether an employee diagnosed with mesothelioma 34 years after settling an asbestosis claim with his employer, including tort claims and workers’ compensation claims, could pursue a workers’ compensation claim for the mesothelioma. The Court found that while both asbestosis and mesothelioma are caused by exposure to asbestos, that they are two separate diseases. With Delaware being a multi-disease jurisdiction, the employee’s manifestation of each separate disease, not the exposure to asbestos, are considered separate accidents for the purposes of workers’ compensation. The employee’s diagnosis of mesothelioma after the settlement is not a changed condition of the same asbestos related injury, but is a new accident for which the employee has a new and separate claim. An employee cannot waive a claim, or release an employer, for an injury resulting from an accident that did not yet occur. The statute of limitations did not preclude the claim because in an occupational disease case the statute of limitations does not begin to run until the employer is aware of the disease, which in this case was 2016.
A similar issue is currently being examined in our neighboring state of Pennsylvania. House Bill 1234 is currently being considered by the House Labor and Industry Committee. This bill would allow individuals affected by Occupational Diseases under Section 108 of the Pennsylvania Workers’ Compensation Act the opportunity to file a workers’ compensation claim beyond the requirement that death or disability occur within 300 weeks of the last date of employment with exposure to the disease causing agent. The Bill is in response to the 2013 Pennsylvania Supreme Court case of Tooey v. A.K. Steel Corp., which allows an employee to sue his/her employer in tort in instances when an occupational disease does not manifest itself until more than 300 weeks after employment ends. The Tooey decision has caused great concern for employers and insurers as it potentially allows for the resurrection of claims from years or even decades ago, claims that employers and insurers thought were long over or ones they never even contemplated. The Bill, which is informally known as the “Tooey fix”, is expected to be passed out of the Committee and sent to the floor of the House for a vote. The Bill is supported by the Speaker of the House, Rep. Mike Turzai (R) from Allegheny County.