HB 1234 of 2019 Amends Section 301(c) of the Workers Compensation Act, extending the deadline to file a claim for medical conditions with a latency period exceeding 300 weeks.
HB 1234 of 2019 also expands the employer’s Section 303 “exclusive remedy” protection. Sounds pretty clear, right? Trying to explain this complex law in the space provided reminds me of Steve Buscemi in Armageddon, sitting in a rocketship filled with fuel and a nuclear weapon “built by the lowest bidder. Makes you feel good, doesn’t it?”
As a simplification of the General Rule, a Claim Petition must be filed within 3 years of the date of injury and/or requires disability or death occur within 300 weeks of injury or last exposure to some offending element (fume, chemical, bacteria etc). HB 1234 adds Section 301(g)(1) stating the deadlines (3 years/300 weeks) “shall not apply” to certain medical conditions. What conditions you ask? Whatever condition claimant can prove “has a latency period of more than three hundred weeks.” In such case, a petition must be filed within 300 weeks of the date claimant was diagnosed. As written, there is a question whether the amendment applies when a specific claimant’s condition does not manifest for more than 300 weeks; OR must the condition be such that NO person would have symptoms appear within 300 weeks. Changing a few key words could eliminate much, expected litigation:
[Proposal: “It shall be a claimant’s burden to prove that the disease for which compensation is sought has a latency period WHICH MAY BE of more than three hundred weeks.”]
The amendment imposes retroactive liability on self-insured employers, but not insured employers. This could provoke litigation regarding the disparate treatment. Given that there is no “suspect class” involved, the General Assembly need only have a rationale basis. As it is often medical providers and first responders who encounter diseases with long latency periods in a work-related setting; and that Municipalities and Hospitals are more likely to be self-insured, this could provide the rationale basis.
Other excerpts likely to produce litigation involve the discretion afforded to insured employers, who “MAY REFER” a claim of this type to the Security Fund, rather than making referral mandatory; the exemption of liability against The Fund where exposure post-dates the amendment (seemingly exempting claims where an insurer becomes bankrupt after the amendment); and expanding the exclusive remedy protection, “whether the disease is compensable OR NOT”.
Overall, the proposal has a “humanitarian spirit”, opening-the-door to compensation for some claims that would otherwise be flatly denied by operation of time. Excluding insurance carriers from liability for claims germinating 6 years earlier, for which the risk has not been assessed, and no premium paid is understandable; as is the strain the law may place on the Security Fund. However, if the intent is to compensate injured workers (specifically First Responders, most likely to be implicated by this change), the amendment could be slightly adjusted to accomplish that intent, rather than phrased in a manner almost assured to provoke time consuming and costly litigation.