As is well known, in the event a third-party tortfeasor is responsible for an individual’s work-related injury, the injured worker may bring a civil action arising out of the incident that caused the work injury against the third party. Significantly, such civil claims can include monetary damages for pain and suffering not available under the Pennsylvania Workers’ Compensation Act. Of course, much to the chagrin of injured workers, should a third-party claim be brought, the workers’ compensation insurance carrier maintains a subrogation interest in the proceeds of the litigation. While it is generally conceded that “double recovery” for the same damages is not good public policy, the fact that employers are allowed to subrogate against damages such as pain and suffering they did not have to pay in the first place has always been a source of contention.
Cases brought by injured workers attempting to avoid or diminish third-party subrogation under Section 319 of the Workers’ Compensation Act, which make their way to the Pennsylvania Commonwealth Court or higher have been largely unsuccessful. With few exceptions, an employer’s right to subrogation has repeatedly been declared “absolute,” most notably where the injured worker recovers from an uninsured motorist policy that he paid for himself, or to the extent workers’ compensation benefits are paid pursuant to the Heart and Lung Act.
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