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BRENDA CONRAD BOWERS v. WORKMEN'S COMPENSATION APPEAL BOARD (STROEHMANN BROTHERS COMPANY) (03/11/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 11, 1983.

BRENDA CONRAD BOWERS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (STROEHMANN BROTHERS COMPANY), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Brenda (Conrad) Bowers, widow of Ronald Conrad, deceased v. Stroehmann Brothers Co., No. A-80717.

COUNSEL

Lee C. Swartz, Hepford, Swartz, Menaker & Wilt, with him Lawrence B. Abrams, Rhoads, Sinon & Hendershot, for petitioner.

Frank L. Tamulonis, Jr., with him John F. Brennan, Zimmerman, Lieberman & Derenzo, for respondent, Stroehmann Brothers Company.

President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 72 Pa. Commw. Page 514]

Brenda Conrad Bowers appeals a Workmen's Compensation Appeal Board order granting subrogation to a workmen's compensation insurance carrier. We affirm.

After her husband was killed in the course of his employment in 1974, Bowers received workmen's compensation benefits for herself and the children.*fn1 When she remarried, her benefits ceased but her children continued to receive benefits directly.*fn2 Subsequently, both Bowers and her children received an out-of-court settlement from a third-party tortfeasor.*fn3 The workmen's compensation insurance carrier instituted suit seeking credit against future compensation payments to the children from the time Bowers remarried. The referee granted subrogation and the Board affirmed.

The question of whether an insurance carrier is entitled to subrogation of workmen's compensation benefits directly paid to the children of a remarried widow

[ 72 Pa. Commw. Page 515]

    has not been specifically addressed by the courts of this Commonwealth. Our Supreme Court, in Anderson v. Greenville Borough et al., 442 Pa. 11, 273 A.2d 512 (1971), held that when part of a workmen's compensation award to a widow was generated by the existence of children, the compensation insurer was not subrogated to recovery received by the children in a wrongful death action. The Court, however, specifically refused to address other situations, such as the insurance carrier's subrogation right vis-a-vis the children when the widow's right to compensation was terminated.

The test used in Anderson to decide a carrier's entitlement to subrogation was whether the person receiving an award is a "dependent" under Section 319 of the Workmen's Compensation Act.*fn4 Under Section 319, the employer (or his insurance carrier) shall be subrogated to the rights, among others, of dependents

[ 72 Pa. Commw. Page 516]

    against any payment by third parties. "Dependents" was defined in Anderson, using prior case law,*fn5 "to mean persons entitled to compensation under the Act." Anderson at 15, 273 A.2d at 514. In Anderson, however, the Court concluded that the children were not classified as dependents since the payment went directly to the widow. In this case, the two children received the payments directly after the remarriage of their mother. In applying the Anderson test, we conclude that the children became dependents when their mother remarried and the compensation carrier is subrogated to any third-party settlement from that day forward.

Bowers also argues that the compensation carrier represented to her that no part of the children's compensation payments would be subject to subrogation by the carrier and therefore any subrogation rights were waived. The insurance carrier denied making such a representation. The referee found, and the Board affirmed, that there had been no waiver of this right. Since the evidence in the record substantiates the Board's decision on this issue,*fn6 we affirm it.

[ 72 Pa. Commw. Page 517]

Order

The order of the Workmen's Compensation Appeal Board, No. A-80717 dated October 5, 1981, is hereby affirmed.

Disposition

Affirmed.


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