Thompson v. Workers' Compensation Appeal Board

LEADBETTER, Judge,

dissenting.

I must respectfully dissent. Our Supreme Court, in Winfree v. Philadelphia Electric Co., stated unequivocally that an employer’s subrogation right under Section 319 .is absolute. 520 Pa. 392, 397 , 554 A.2d 485, 487 (1989). Moreover, in Kelly v. Workmen’s Compensation Appeal Bd. (A-P-A Transport Corp.), 107 Pa.Cmwlth. 223 , 527 A.2d 1121, 1122-23 (1987), this court examined allegations of employer wrongdoing and concluded, that equitable considerations did not outweigh the mandatory language of Section 319. In that case, claimant argued that the employer willfully obstructed his ability to negotiate and obtain a third party settlement by refusing to voluntarily provide records and denying that he had suffered any injury. We noted that “any allegation of wrongdoing by the employer must be weighed against the plain wording of the statute which gives the employer an unqualified right to subrogation.” 527 A.2d at 1122 , citing Meehan v. City of Philadelphia, 184 Pa.Super. 659 , 136 A.2d 178 (1957) and Curtis v. Simpson Chevrolet, 348 F.Supp. 1062 (E.D.Pa.1972).

Here, I would also find insufficient equitable basis to override the clear statutory mandate. Employer in this case is not even alleged to have acted in bad faith, as was claimed in Kelly . Indeed, Craig’s negligence was as potentially harmful to his company’s interests as to those of the plaintiff/claimant. Moreover, claimant, a party to the tort suit, did not seek to protect employer’s interest by. contesting the court’s ruling, but instead settled the case on the basis that only those damages inuring to his benefit would be paid, while those that would be passed on to employer would not. 1 In adopting his settlement strategy, claimant assumed the risk that the Worker’s Compensation tribunals, which are vested with the authority to determine questions of subrogation (as the courts of common pleas are not), would follow the statute they are charged with enforcing.

Under these circumstances, I do not believe that the WCJ or the Board erred in doing so. Accordingly, I would affirm the order of the Board.

. While the majority states that employer had a right to intervene and to "pursue or settle its claims against the third party tortfeasors ... independently of the claims of Claimant for pain and suffering ...,” it is not at all clear to me that a petition to intervene for the express purpose of frustrating a settlement would have been allowed by common pleas, nor that employer could have pursued its claims independently after claimant gave a release for his injuries.