Special Workers’ Compensation Alert - Pennsylvania

The Pennsylvania Superior Court issued an important decision on May 13, 2021, in the matter of Mercer v. Newell d/b/a Active Radiator Repair, which re-affirmed the 1992 decision of the Pennsylvania Supreme Court in Martin v. Lancaster Battery. These cases involved a fraudulent misrepresentation made by an employer to an employee that resulted in an aggravation of a pre-existing work-related injury.

In Mercer, the claimant filed a civil lawsuit seeking compensatory and punitive damages for the time period when elevated lead levels in his brain were hidden from him by the employer, subsequently leading to an alleged “aggravation” of the lead levels in his brain causing permanent brain damage. The Superior Court held that since the injury (aggravation of the lead accumulation) was the direct result of the employer’s “fraudulent misrepresentation,” the claimant could pierce the veil of the exclusivity provisions of the Workers’ Compensation Act and proceed in civil court against his employer.

Employers must be advised to not hide information from employees or fraudulently misrepresent information to employees regarding potential exposures to hazards in the workplace. This would include potential exposure to COVID-19. Such fraudulent misrepresentations by the employer could open them up to civil liability and remove the shield of the Pennsylvania Workers’ Compensation Act.

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