Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Pamela A. Powell, Individually and as Administratrix of the Estate of David W. Powell v. Sacred Heart Hospital, Michael B. Kraynick, M.D., Mark J. Cerciello, M.D. and William H. Singer, M.D., No. 81-C-57.
Eugene R. Mayberry, with him, John P. Thomas, for appellant.
George K. Keenan, for appellee.
Judges Rogers and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Concurring Opinion by Judge Barry.
[ 99 Pa. Commw. Page 576]
Before this Court is the appeal by Pennsylvania Manufacturers' Association Insurance Company (PMA), of the order of a trial court, denying its claim to be subrogated out of a third party settlement for workmen's compensation benefits required to be paid by PMA because of a death, the basis for the third party funds. The Plaintiff in the third party case was Pamela A. Powell, widow of David W. Powell, deceased employee, and the third party recovery resulted from a malpractice claim arising out of surgery required by a compensable work injury sustained by decedent. PMA intervened in the third party action, asserting its subrogation claim, but questioning in the trial court the jurisdiction of that court to entertain the subrogation issue, but claiming, in the alternative, its entitlement to subrogation for compensation payments required to be made by reason of the death for which the third party action was instituted. Specifically, its subrogation claim is for compensation payable by it because of the death to the widow, now remarried, and to the minor child of the decedent. The jurisdictional issue has not been pursued on this appeal.*fn1
The subrogation rights of the employer are established in Section 319 of The Pennsylvania Workmen's Compensation Act (Act),*fn2 the pertinent portion of which reads:
Section 319. Where the compensable injury is caused in whole or in part by the act or omission
[ 99 Pa. Commw. Page 577]
of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer ; reasonable attorney's fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe, his personal representative, his estate or his dependents. (Emphasis added.)*fn3
The original compensation case arose out of a back injury suffered by the decedent in the course of his employment with Lehigh Structural Steel in 1977 for which PMA, as workmen's compensation carrier, paid benefits at various times during decedent's lifetime. In January of 1979 decedent underwent surgery to correct his back problem. It was due to complications resulting from this surgery that brought about the death of decedent on January 22, 1979. Since the death was a direct result of treatment for the compensable injury of 1977, PMA executed a compensation agreement requiring it to make payments of death benefits to Pamela A.
[ 99 Pa. Commw. Page 578]
Powell, widow of decedent in her own right and in behalf of decedent's minor son. When the widow subsequently remarried a supplemental agreement was entered into under which she became entitled to payment of 104 weeks of benefits and decedent's son became separately entitled to ...