The Commonwealth Court has ruled that a self-insured workers’ compensation trust cannot subrogate an injured police officer’s recovery in a lawsuit against the motorist who injured him.

In doing so, the court reversed the ruling of the Workers’ Compensation Appeal Board, which held that the Delaware Valley Workers’ Compensation Trust was entitled to subrogation in claimant James Kenney’s third-party lawsuit against the motorist.

Kenney, a Lower Pottsgrove Township police officer, was injured in a car accident in September 2014, according to Commonwealth Court President Judge Mary Hannah Leavitt’s opinion. He was paid benefits from the Heart and Lung Act as a result. He subsequently filed suit against the driver who caused the accident.

The trust, which paid Kenney’s benefits, sought subrogation, but Kenney argued that Heart and Lung Act benefits are not subject to subrogation as workers’ compensation claims are.

Leavitt said that the Motor Vehicle Act prohibits subrogation for claims paid through the Heart and Lung Act, citing the court’s ruling in Stermel v. Workers’ Compensation Appeal Board.

“The board held that the trust paid wage and medical benefits as workers’ compensation benefits and, thus, was entitled to subrogation under Section 319 of the Workers’ Compensation Act,” Leavitt said. “The board held that the trust was entitled to recover these payments from the tortfeasor, as can any insurance carrier. Claimant argues that the board erred because the manner by which the public employer chooses to fund its liability to injured employees is irrelevant. Simply, a public employer may not seek subrogation against the tort recovery of a public safety employee who is injured in a work-related automobile accident.”

She added that in other cases, the court rejected employers’ arguments that an employer’s practice of separating the Heart and Lung benefits from workers’ compensation benefits entitled it to subrogation of the latter.

“Here, employer took pains at the WCJ hearing to establish that the trust cannot be distinguished from a commercial insurance carrier providing workers’ compensation coverage. It did so because Stermel suggested that commercial carriers, unlike self-insured employers, may be able to seek subrogation of compensation payments made to an employer. Notably, claimant agrees that the trust is, for all intents and purposes, an insurance company. The question, then, is whether that fact changes the outcome, as the board believed. We conclude that it does not,” Leavitt said.

Kenney is represented by Michael Gottlieb of Vangrossi & Recchuiti in Norristown

“We thought from the very beginning that the workers comp judge was right on the money. when we saw that the board had reversed her we were amazed,” Gottlieb said.

He added, “We went in there fighting for officer Kenney, and as it turns out there are at least six other officers that will benefit from this case.”

The township and trust is represented by Haverford-based Martin J. Fallon, who did not return a call seeking comment.