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DALE MANUFACTURING CO. v. COMMONWEALTH PENNSYLVANIA (02/28/78)

decided: February 28, 1978.

DALE MANUFACTURING CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND EDITH BRESSI, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Edith Bressi v. Dale Manufacturing Co., No. A-71692.

COUNSEL

Ronald M. Katzman, with him Goldberg, Evans & Katzman, for petitioner.

Bruce E. Cooper, with him Cooper and Butler and James N. Diefenderfer, for respondents.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 34 Pa. Commw. Page 32]

Petitioner appeals the denial by the Workmen's Compensation Appeal Board of a request to suspend compensation payments and for subrogation rights to a fund created by the settlement of a malpractice claim by a Respondent (Claimant).

[ 34 Pa. Commw. Page 33]

Claimant, an employee of Dale Manufacturing Company, injured her back at work on January 23, 1970. Medical diagnosis indicated she had suffered a ruptured disc in the accident and on February 18, 1970 she underwent an operation for the removal of the disc. The physician's prognosis was that she would be able to return to work and perform her regular duties in approximately four months. Following the operation, however, Claimant did not so recover and an infection developed which prevented the wound from healing. After more than a year of treatment for this infection, she underwent a second operation in March 1971 during which it was discovered that a cottonoid padding had been left in the wound at the time of the first operation which had apparently caused the infection and prevented the incision from healing properly.

An open compensation agreement was entered into on April 2, 1970, under which Claimant was to receive compensation at the rate of $42.06 per week beginning January 31, 1970 and for medical and hospital expenses. Pursuant to this agreement Petitioner made medical payments of $1,803.70 for the two surgical operations and also made compensation payments during the period between the two operations. In September 1971 Claimant instituted a civil suit against the physician to recover damages that resulted when the cottonoid padding was left in the incision. This action resulted in a settlement before trial in which Claimant received $30,000.

Petitioner, through its insurance carrier then filed a petition to suspend payments and determine rights of subrogation, alleging the negligence of the physician had caused an aggravation of the original injury. In her answer and new matter, Respondent alleged her disability caused by the cottonoid padding had terminated

[ 34 Pa. Commw. Page 34]

    when the padding was removed and the incision healed and asserted that subsequent to that time her continuing disability was the result of the original injury which surgery failed to cure. At a hearing on the petition held on February 20, 1975, Petitioner placed in the record the complaint filed by the Claimant in the Court of Common Pleas of Montour County against the physician. No other evidence or testimony was presented. The referee found the insurance carrier was entitled to subrogation. The Board vacated the referee's order. We affirm.

Petitioner has framed two questions in this appeal: (1) Where the original compensable injury is aggravated by the negligence of a physician treating the injury is the employer subrogated to the funds recovered in a settlement of a claim against the physician; and (2) Even if the injuries caused by the medical treatment were different from ...


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