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CARMINE BENTLER v. WORKMEN'S COMPENSATION APPEAL BOARD (SCRANTON PROFESSIONAL WINDOW CLEANING COMPANY) (11/25/88)

decided: November 25, 1988.

CARMINE BENTLER, ADMINISTRATRIX OF THE ESTATE OF EDWARD BENTLER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SCRANTON PROFESSIONAL WINDOW CLEANING COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Edward Bentler v. Scranton Professional Window Cleaning Company, No. A-92425.

COUNSEL

Thomas J. Ratchford, Jr., for petitioner.

Cal A. Leventhal, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.

Author: Mcginley

[ 121 Pa. Commw. Page 333]

Carmine Bentler (Claimant), Administratrix of the Estate of Edward Bentler, appeals an order of the Workmen's Compensation Appeal Board (Board), which granted subrogation to Rockwood Insurance Co. (Insurer), pursuant to Section 319 of The Pennsylvania Workmen's Compensation Act (Act),*fn1 77 P.S. § 671. We affirm.

The facts are not in dispute. Claimant's husband (Deceased) was fatally injured in a work-related accident while in the employ of Scranton Professional Cleaning Co. (Employer). At the time of the accident, Claimant was engaged by Employer to clean windows at a school within the Scranton School District, with whom the Employer had contracted to provide services. Insurer was Employer's workmen's compensation insurance carrier. Claimant and Insurer entered into an agreement providing compensation to Claimant and the

[ 121 Pa. Commw. Page 334]

Deceased's children. Claimant also brought an Action for Wrongful Death against the school district. A settlement was reached in the wrongful death action almost two years after Claimant and the Insurer had entered into the workmen's compensation agreement. Pursuant to this settlement, the school district agreed to pay Claimant and the Deceased's children $175,000.00.

Insurer filed a Petition to Review the workmen's compensation agreement, wherein Insurer alleged that it was entitled to subrogation against Claimant's third-party settlement pursuant to Section 319 of the Act. The Referee granted Insurer subrogation for the full amount of the third-party settlement. Claimant appealed that decision to the Board, which modified the award, limiting the amount of the award to Claimant's share of the settlement, and disallowing subrogation with respect to the Deceased's children's share. Claimant appealed the Board's decision to this Court.

The sole issue before us is whether Insurer's right of subrogation pursuant to Section 319 of the Act is barred in this instance by application of Section 8553(d) of the Judicial Code, 42 Pa. C.S. § 8553(d). This issue is a matter of first impression.

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether any finding of fact was not supported by substantial evidence. Bailey v. Workmen's Compensation Appeal Board (Lawton Feed ...


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