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Fortwangler v. Workers' Comp. Appeal Bd. (Quest Diagnostics and Travelers Property and Casualty Co.)

Commonwealth Court of Pennsylvania

March 31, 2015

Kristina Fortwangler, Petitioner
v.
Workers' Compensation Appeal Board (Quest Diagnostics and Travelers Property and Casualty Company), Respondents

Submitted November 21, 2014

Page 29

Appealed from No. A13-0504. State Agency: Workers' Compensation Appeal Board.

Barbara E. Holmes, Pittsburgh, for petitioner.

Michael Relich, Pittsburgh, for respondents.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

PATRICIA A. McCULLOUGH, Judge

Page 30

Kristina Fortwangler (Claimant) petitions for review of the May 28, 2014 order of the Workers' Compensation Appeal Board (Board), which reversed the decision of a workers' compensation judge (WCJ) granting Claimant's petition to reinstate/review compensation benefits and held that Quest Diagnostics (Employer) had not waived its future subrogation

Page 31

rights under section 319 of the Workers' Compensation Act (Act).[1] We affirm.

On January 25, 2007, Claimant sustained a cervical strain in a work-related motor vehicle accident, and Employer accepted liability for the injury by way of a notice of compensation payable. (Board's op. at 1.) On November 17, 2010, Claimant filed a petition to reinstate/review compensation benefits, alleging that, based on a third-party settlement agreement, Employer was paying her benefits at an incorrect rate and taking a credit to which it was not entitled. (WCJ's Finding of Fact No. 1.) The petition was assigned to a WCJ, who held multiple hearings.

Claimant testified that she settled the third-party case against the driver involved in the motor vehicle accident. Claimant stated that she was not present during negotiations between her then-counsel and Employer's workers' compensation insurance carrier (Insurer). She testified that she and Insurer initially signed a December 5, 2008 third-party settlement agreement (Original SA). (Reproduced Record (R.R.) at 61a-63a, 65a, 72a). The Original SA recognized an accrued lien of $28,985.72, from which $10,018.51, the expenses attributable to recovering the accrued lien, was subtracted to calculate a net lien of $18,969.21 owed to Employer. (R.R. at 151a.) The Original SA also provided under a paragraph entitled " Further Matters Agreed Upon" as follows:

The defendant/employer and its workers' compensation insurance carrier have an accrued lien of $28,985.72 as of the date of this agreement. The claimant has a third party claim against Lester Kemp arising out of the work injury of 1/25/2007 which has settled for a lump sum payment of $100,000.00. The defendant/employer, and its workers' compensation insurance carrier, hereby agree to a payment of $19,500.00 in full satisfaction of the defendant/employer's (and its workers' compensation insurance carrier's) right to subrogate against the third party settlement. The employer specifically waives its right to subrogation against future benefits payable to or on behalf of the claimant in exchange for and in consideration of the monies paid to employer in excess of the net lien to which the employer is entitled.

( R.R. at 151a.)

Claimant testified that, based on conversations with her former counsel, she understood that Employer waived its past and future subrogation rights as part of the settlement agreement. Claimant stated that she misplaced the signed Original SA and that her former counsel sent her an unsigned copy in the mail, which she submitted at the hearing. (R.R. at 64a-65a, 72a.)

Claimant further testified that she signed a January 7, 2009 corrected third-party ...


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