Major Exceptions to Employer Immunity under the Pennsylvania Workers' Comp Act

Greg Boles
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Partner at The Boles Firm | Experience Matters


Employers are generally immune from tort liability for injuries employees suffer on the job. There are important exceptions, however. For example, if an employer fails to obtain workers compensation insurance coverage, injured employees have the right to either sue the employer in negligence or seek benefits under the Pennsylvania Workers Compensation Act. If they choose to seek benefits under the Act, they also have the right to make a claim against the Uninsured Employers Guaranty Fund. 

Special Exception:  Aggravation Caused By Misrepresentation

Under ordinary circumstances an employer is immune from tort liability for injuries resulting from an intentional act. The sole exception is the case of Martin v. Lancaster Battery Company, 606 A.2d 444 (Pa. 1992), where the Pennsylvania Supreme Court allowed an injured worker to pursue a claim against an employer who made a misrepresentation to the employee concerning medical test results, and, as a result, the employee suffered a severe aggravation of an underlying condition. Over the years, however, Pennsylvania courts have strictly limited the practical effects of Martin.  


Actions brought against an employer for wrongful discharge or sex, race, or age discrimination are not barred by the Workers Compensation Act. Mickelson v. Exxon Research and Engineering Co., 808 F. 2nd 1005 (3d Cir. 1987). Employees may also pursue remedies under OSHA. McMullen v. WCAB, 858 A.2nd 1474 (Pa. Cmwlth. 2004). 

Under Pennsylvania law, injured workers fired for filing workers’ compensation claims may pursue a wrongful discharge suit against their employers.  Shick v. Shirey,  552 Pa. 590, 716 A.2d 1231 (Pa. 1998). 

Union represented employees, however, cannot pursue a wrongful discharge lawsuit if the collective bargaining agreement protects the employee from discharge without proper cause.  Phillips v. Babcok and Wilcox, 349 Pa. Super. 351, 503 A.2d 26 (1986), appeal denied, 514 Pa. 618, 521 A.2d 933 (1987); Harper v. American Red Cross Blood Services, 153 F.Supp.2d 719 (E.D. Pa. 2001).  

The commonwealth or its political subdivisions are not subject to a wrongful discharge claim because such claims do not fall within the exceptions to sovereign immunity outlined in 42 Pa. C.S.A. § 8522 (b).  Similarly, local agencies are immune under the Pennsylvania Political Sub-Division Tort Claims Act, which does not recognize a wrongful discharge lawsuit.  42 Pa. C.S.A. § 8542.  Haiden v. Greene County Career and Technology Center, 2009 Westlaw 2341922 (U.S.D.C., W.D. Pa. 2009).


Because temporary employees are so common in today's economy, the question of who is entitled to immunity under the Act is of paramount interest to personal injury lawyers, who should review the facts of a case carefully before proceeding. The test for determining whether a borrowing party is an employer is whether the right to control the work to be done and the manner in which the work is to be performed has passed to the borrower. For a borrowing employer to be immune from tort liability, the borrower must have the right to select, higher, and fire employees. Mere transfer of the right control may not be enough. Red Line Express Co. v. WCAB, 588 A.2nd 90 (Pa. Cmwlth. 1991); JFC Temps, Inc. v. WCAB, 688 A.2nd 862 (Pa 1991). 


Under the dual capacity doctrine, an employer may be liable under the Act and for tortious conduct. In Tatrai v. Presbyterian University Hospital, 439 A.2d 1182 (Pa. 1982),  the Pennsylvania Supreme Court held that an employer was not immune from tort liability where the plaintiff was an employee of the hospital and was injured while being treated during working hours for a personal illness. If the employee suffers injury while being treated in an employee dispensary that is not open to the general public, the employer is immune. Budzichowski v.  Bell Telephone Company of Pennsylvania, 469 A.2d 111 (Pa 1983). An employee injured on the job while using a product manufactured by the employer may not recover in a personal injury action against the employer. Heath v. Church’s Fried Chicken, Inc. 546 A.2d 1008 (Pa. Super. 1988). If an employee is injured by a product manufactured by his employer but the employee is not working, the employee probably can maintain a claim against his employer. Poyser v. Newman & Co., 522 A.2d 548 550n.4 (Pa. 1987).

I hope this article is of help to practitioners considering whether their clients may recover damages outside the Act. I am happy to provide assistance to any attorney or injured party with additional questions.