Appeal from the Order of the Workmen's Compensation Appeal Board in case of John E. Moser v. Maitland Brothers Co., Inc., No. A-86204.
Thomas J. Williams, with him, Daniel K. Deardorff, Martson, Deardorff, Williams & Otto, for petitioner.
Bryan Craig Black, Frankel & Gates, P.C., for respondents.
Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
[ 92 Pa. Commw. Page 422]
Maitland Brothers Co., Inc., Employer, appeals here that portion of the order of the Workmen's Compensation Appeal Board (Board) which reversed the decision of a referee granting to the Employer a credit in the amount of $15,000.00 against the Employer's liability for compensation payments, the $15,000.00 having been derived by Claimant from his settlement with a tort-feasor who struck and injured Claimant in an incident separate from the compensable one and occurring several months after the compensable work injury. We will affirm.
Claimant suffered a work injury to his back on May 9, 1980, for which he has been receiving compensation for undisputed total disability since that time. On February 6, 1981, while driving his automobile he was struck in the rear causing complaints for which he settled with this tort-feasor in the amount of $15,000.00. On employer's application by petition for termination to have its liability for Claimant's continuing disability terminated or diminished by reason of the collision on February 6, 1981, the referee found that "[p]art of the Claimant's injury and disability since February 6, 1981 is related to that incident . . .," but that "[t]here is no method whereby the injuries suffered by Claimant can be apportioned between Defendant-Carrier and third party tort-feasor since the injuries were to the same parts of the back." The referee added the following "CONCLUSIONS OF LAW":
2. Defendant-Carrier has failed to produce evidence that Claimant is but partially disabled or not disabled at all. The testimony of Dr. Ellison is clear that Claimant is totally disabled.
[ 92 Pa. Commw. Page 4234]
. Section 319 of the Workmen's Compensation Act provides for subrogation in a very broad way. The employer, and carrier may achieve a refund with few exceptions out of recovery against the third party tort-feasor who caused the injuries for which compensation liability arose. Claimant was progressing nicely after his operation, and there was talk between Dr. Ellison and Claimant over an uncertain date to return to work.
5. The accident to Claimant's back, in the very same place of the original accident 'in part' contributed to the cessation of thought of returning to work. Under the Act the Defendant-Carrier is subrogated to the right of the employee . . . against such third party to the extent of the compensation payable under article 319 by the employer; reasonable attorney fees and other proper disbursements incurred in obtaining a recovery or in effecting a settlement shall be prorated between Defendant-Carrier and employee.
6. Defendant-Carrier is entitled to have the $15,000 settlement from the tort-feasor treated as an ...