Appeal, No. 126, Oct. T., 1958, from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1957, No. 8014, in case of Albert Soliday v. Hires Turner Glass Co. et al. Judgment affirmed; reargument refused July 1, 1958.
Edmund B. Spaeth, Jr., with him Frederick L. Fuges, and MacCoy, Evans & Lewis, for appellants.
Milford J. Meyer, with him Albert M. Hankin, Jacob B. Abrams, and Meyer, Lasch, Hankin & Poul, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).
[ 187 Pa. Super. Page 46]
This is a Workmen's Compensation case where the injury was caused by the negligence of a third party. A settlement was made with the third party after compensation payment had been made. The question before us is whether the employer is liable for the prorata share of the fees based, not only upon the amount repaid, but also on the amount credited, to the employer on account of contingent liability for future installments of compensation?
The employee was injured on July 28, 1953 and received compensation for total disability under an open agreement to May 3, 1955. On May 3, 1955, employee's disability changed to a 25% partial for which compensation was awarded from May 3, 1955 to May 9, 1956. Since May 9, 1956, the claimant's earnings have been greater than or equal to the agreement wage and, therefore, the employer was entitled to a suspension.
The defendant carrier has paid on behalf of the claimant a fee equal to one-third of the sum which it had paid for compensation and medical expenses. It is agreed that the claimant received from the third party an amount in excess of the compensation liability of the defendant carrier.
The defendant carrier takes the position that it is required to pay a fee based only upon the amount actually recovered by it at the time of the settlement with the third party, or the amount paid out at the time of recovery. The board and the court below, however,
[ 187 Pa. Super. Page 47]
held that claimant was entitled to reimbursement for fees not only on the basis of the amount of actual reimbursement, but also on the basis of future compensation payments. In Wilson v. Pittsburgh Bridge and Iron Works, 85 Pa. Superior Ct. 537, we held that in using the word "recovery" the legislature had in mind the net amount recovered in the ...