Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Beatrice Savage v. Jefferson Medical College Hospital and Pennsylvania Manufacturers' Association Insurance Company, No. 660, October Term, 1970.
John F. McElvenny, with him Henry F. Furman and Frederick W. Anton, III, for appellants.
George A. D'Angelo, with him Michael C. McManus and Truscott and Erisman, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. President Judge Bowman dissents.
This is a workmen's compensation case. The question is whether the workmen's compensation insurance carrier for the employer can claim subrogation rights, under Section 319 of The Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671, in a fund of money resulting from settlement of a lawsuit based upon the employe's being negligently injured by the employer subsequent to the on the job accident that caused the employe's compensable injury.
Beatrice Savage, an employe of the Jefferson Medical College Hospital, suffered a compensable injury when, in the course of her employment as a secretary, she fell, on January 11, 1965, and sustained a transcervical fracture of the left hip. Miss Savage (Savage) was admitted to the Jefferson Medical College Hospital (Jefferson) and, on January 12, 1965, a successful operation was performed relative to the fracture. All of the medical evidence in the record established that she would have been able to return to work and perform her employment duties in nine to twelve months from the date of the operation. However, such was not to be her experience. On February 9, 1965, when she was being returned from physical therapy, she was dropped into her bed and her left hip was dislocated anteriorly with the head of the femur out of the socket, but her original fracture was not damaged. Then on March 11, 1965, in the course of her treatment, when she was being given a whirlpool bath, her hip again dislocated. The original fracture healed completely but, because of the two injuries sustained while a patient at Jefferson, Beatrice Savage became permanently disabled.
An open compensation agreement was entered into on February 10, 1965, under which Savage was paid compensation at the rate of $46 per week, beginning January 18, 1965. In March 1966 Savage filed an action in trespass against Jefferson for damages arising out of the injuries which she received while a patient in the hospital. This action was settled by the liability insurance carrier for Jefferson for the sum of $27,500.
Jefferson, through its compensation insurance carrier, then petitioned the Workmen's Compensation Board to suspend the compensation agreement, for the reason that Savage's recovery from Jefferson's liability carrier precluded any further payments. Jefferson claims it is entitled to a credit against future weekly compensation payments of $14,710 under the provisions of Section 319 of The Workmen's Compensation Act, as amended, 77 P.S. § 671. Jefferson asserts that it, as employer, is subrogated to the rights of the employe against Jefferson as a third party tortfeasor to the extent of the compensation paid and payable by it to Savage.
The referee granted the petition to suspend compensation payments and ordered that Jefferson be credited with the sum of $14,710 against future weekly compensation payments. Upon appeal, the Board vacated the referee's order and entered its order dismissing Jefferson's petition. Jefferson and its insurance carrier appealed to the Court of Common Pleas of Philadelphia County and that Court affirmed the Board. The appeal to this Court followed.
The appellants here rest their case upon Section 319 of The Workmen's Compensation Act, as amended, 77 P.S. § 671, which reads in part as follows: "Where the compensable injury is caused in whole or in part by the act or omission of a third party, the ...