No. 381 January Term, 1978, Appeal from the Order of the Commonwealth Court dated February 28, 1978, at No. 68 C.D. 1977, Affirming the Decision of the Workmen's Compensation Appeal Board at Docket No. A-71692
Ronald M. Katzman, Harrisburg, for appellant.
Bruce E. Cooper, Harrisburg, for appellee (claimant).
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
Allocatur brings for review an order of the Commonwealth Court that affirmed an order of the Workmen's Compensation Appeal Board, hereinafter "Board". Edith Bressi, claimant/appellee, injured her back during the course of her employment with employer/appellant, Dale Manufacturing Company, on January 23, 1970. As a result of her injury claimant suffered a ruptured disc, and on February 18, 1970, she underwent an operation for the removal of the disc. The parties entered into an open compensation agreement under which claimant was to receive weekly compensation plus medical and hospital expenses.
Claimant did not recover as her physician had predicted, and an infection developed which prevented the proper and speedy healing of the surgical wound. In March, 1971, claimant underwent a second operation during which her physician discovered that he had failed to remove a cottonoid pad from the wound during the initial operation. Six months later claimant filed a complaint in trespass alleging her physician's negligence. This action resulted in a $30,000 pre-trial settlement.
Pursuant to the compensation agreement, employer made medical payments for the two surgical operations and also made weekly compensation payments to claimant during the period between the two operations. On June 25, 1973, employer filed a Petition to Suspend Payments and to Determine Subrogation Rights. Employer alleged that the negligence of claimant's physician aggravated the initial injury. He therefore claimed that he was entitled to subrogation with respect to the settlement in order to recover previously paid compensation and medical expenses and to receive a credit for future payments to the extent of the remaining balance of the settlement. In claimant's responsive pleading she asserted that the disability resulting from her doctor's negligence lasted for a one-year period and terminated when the cottonoid pad was removed and the
wound finally healed. She further alleged that her continuing disability was the result of the original injury.
A hearing before a referee was held on February 20, 1975. The only evidence proffered by employer was a copy of the complaint claimant had filed against her physician in the malpractice action. Based only upon this complaint the referee found in favor of employer and directed subrogation. The Board reversed the referee, and Commonwealth Court affirmed the Board's decision. Dale Manufacturing Company v. Workmen's Compensation Appeal Board, 34 Pa. Commw. 31, 382 A.2d 1256 (1978).
Employer's claim to subrogation is based upon Section 319 of The Pennsylvania Workmen's Compensation Act, hereinafter "Act", Act of June 2, 1915, P.L. 736, as amended, 77 ...