Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
(412) 261-4774 - fax (412) 261-1225

Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
(412) 261-4774 - fax (412) 261-1225

Workers' Compensation insurer entitled to subrogation against third party settlement designated as pain and suffering

Issues:Workers' Compensation insurer entitled to subrogation against third party settlement designated as pain and suffering
Case Name:Thompson v. W.C.A.B. (USF&G Co. and Craig Welding & Equipment Rental), 174 C.D. 1997, 06-21-02.
Synopsis:FACTS:     Claimant sustained a work-related injury which became the subject of a third part products liability action.  The claimant settled the case with manufacturer designating settlement solely for pain, and suffering.

DECISION:     Insurer entitled to subrogation against pain & suffering award.

REASONING:    The Commonwealth Court determined that insurer's right to subrogation under §319 of the Workers' Compensation Act is absolute.  The claimant cannot characterize a tort recovery as solely for pain and suffering to deprive employer/insurer statutory right of subrogation.  Public policy should encourage parties to join the employer/insurer in settlement process to reflect genuine compromise of rights of all interested parties.

Practice Points:

While this case affirms an insurer's statutory right under §319, it is prudent to be aware of all potential subrogation intents and have these interests recognized in a workers' compensation judge's decision.

Additionally, insurers may find it beneficial to have worker compensation counsel intervene in litigation to protect insurer's rights to recover monies expending in injuries which result on account of the negligence of third party.