Cases dealing with third-party subrogation under Section 319 of the Workers’ Compensation Act that make their way to the appellate courts have traditionally not been very competitive. Essentially, an employer’s right to subrogation has repeatedly been found to be absolute, with few exceptions. That has not prevented clever claimants’ counsel from trying to preclude carriers from subrogation, however. In the matter of Davis v. Workers’ Compensation Appeal Board (Pennsylvania Social Services Union), No. 216 C.D. 2015, decided at the end of last year, the Commonwealth Court took up yet another angle of subrogation that presented the possibility of an exception to the absolute right of employers to subrogate against the workers’ compensation benefits of injured workers. The question presented was whether an employer and its carrier can subrogate against the uninsured motorist coverage of a non-negligent driver/co-worker of the injured employee.
The facts of the case were not in dispute, and in fact, were stipulated to by the parties in the employer’s “petition to review compensation benefits offset” seeking subrogation. On Nov. 9, 2010, the claimant injured her neck and back in a work-related automobile accident, in which she was the passenger of a vehicle owned and operated by a co-employee who was not responsible for the accident. The parties never learned the identity of the driver of the negligent/striking vehicle. By the end of the workers’ compensation case, the employer, through its carrier, had paid out a total of $89,785.22, creating a subrogation lien in that amount. The employer paid $56,213 in wage-loss benefits and $33,572.22 in medical benefits.
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