Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Harold Reese, Jr., Deceased v. Penn Nutrients, Inc., Misc. No. 4081.
Thomas J. Floyd, Jr., Shirk, Reist, Wagenseller and Shirk, for petitioner.
Joseph P. Hafer, Thomas & Thomas, for respondent, Penn Nutrients, Inc.
Judges Rogers and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Rogers.
[ 95 Pa. Commw. Page 326]
This is the appeal of Marion M. Reese (petitioner), widow of Harold R. Reese, Jr. (decedent), from an order of the Pennsylvania Workmen's Compensation Appeal Board (board) determining the amount, on a weekly basis, to which the decedent's employer is entitled to be subrogated from the proceeds of a settlement of a wrongful death action against a third party.
The decedent died on December 15, 1977 as a result of injuries he sustained, in a vehicular accident, in the course of his employment. He was survived by his wife, and only child of their marriage and two children of the petitioner to whom the decedent stood in loco parentis.
The petitioner and the employer entered into a workmen's compensation agreement providing for the payment of weekly compensation benefits of $113.33 in accordance with the schedule of compensation benefits payable to a widow with three children as set forth in Section 307(4 1/2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 561(4 1/2).
The Court of Common Pleas of Berks County approved a settlement of the wrongful death action the petitioner had brought on her own behalf and on behalf of the only child of her marriage to the decedent. Not being children of the decedent, the remaining children
[ 95 Pa. Commw. Page 327]
were not involved in this action. The case was settled for $150,000. One-half ($75,000) was in satisfaction of the petitioner's claim as widow of the decedent and one-half was in satisfaction of the claim of the decedent's child.
The parties agree that the employer is entitled to be subrogated (under Section 319 of the Act, 77 P.S. § 671) only to the $75,000 paid in satisfaction of the petitioner's claim as widow. See Anderson v. Greenville Borough, 442 Pa. 11, 273 A.2d 512 (1971). The parties were unable to agree on the amount to which the employer should receive credit, as subrogation, against its obligation to pay compensation in the amount weekly of $113.33.
The employer petitioned the board for an order that its weekly obligation to pay the petitioner should be reduced to $37.78, being its share of attorney's fees and costs, contending that it was entitled to be subrogated to the full amount of the ...