Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Emmerich Roman, Deceased, Janet M. Roman, Widow v. Yannuzzi, Inc., No. A-90888.
Michael D. Bart, for petitioner.
Matthew D. Dempsey, with him, John R. Lenahan, Jr., Lenahan & Dempsey, P.C., for respondent.
Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.
[ 118 Pa. Commw. Page 186]
This is an appeal by Janet M. Roman (Claimant) from an order of the Workmen's Compensation Appeal Board (Board) granting Yannuzzi, Inc. (Employer) a credit setoff against the payment of future compensation in the amount of $273,408.69.
Because the facts in this case are undisputed the parties entered into stipulations. Emmerich Roman (Decedent) was employed by Employer when, on September 25, 1981, he suffered a fatal injury. Decedent was survived by Claimant (his wife) and his minor daughter. Claimant began receiving workmen's compensation benefits on behalf of herself and her minor daughter. In April 1983 Claimant and her daughter entered into a third-party settlement agreement for $450,000.00 with the negligent tortfeasor who had caused the Decedent's death. On July 2, 1983 Claimant remarried. Subsequently, the referee determined that Employer was entitled to a credit setoff against future payment pursuant to Section 319 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 671. That Section pertinently provides:
[ 118 Pa. Commw. Page 187]
Where the compensable injury is caused in whole or in part by the act or omission 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. The employer shall pay that portion of the attorney's fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future installments of compensation. (Emphasis added.)
The Board affirmed the referee's decision and this appeal ensued. Our scope of review is limited to determining whether there has been a constitutional violation or an error of law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
Before this Court Claimant contends first that the Board erred in allowing the setoff of future payments as to the portion of the settlement which went to the minor child. Section 319 grants an employer the right to
[ 118 Pa. Commw. Page 188]
subrogation as to, inter alia, "dependents" in third-party settlements. The question of whether minor children are considered "dependents" for purposes of Section 319 was considered in Anderson v. Greenville Borough, 442 Pa. 11, 273 A.2d 512 (1971). In that case our state Supreme Court held that "dependents," as that term is used in Section 319, means persons who are entitled to compensation under the Act. The Anderson Court then reasoned that pursuant to the provisions of Section 307 of the Act, 77 P.S. § 561, children are entitled to compensation in their own right only when the decedent is not survived by an eligible widow and, hence, a minor child is not a dependent under Section 319 when an eligible widow is living. The case further held that because, where there is an eligible widow, a minor child is not entitled to ...