November 28th, 2018 by Rieders Travis in Workers' Compensation

Hartford Ins. Group v. Kamara, 2018 Pa. LEXIS 6033 (Pa. S.Ct. November 21, 2018) Baer, J.  This appeal presents the issue of whether a workers’ compensation insurance carrier may bring a third-party action against an alleged tortfeasor on behalf of an injured employee to recoup the amount paid in workers’ compensation benefits where the employee did not independently sue the tortfeasor, did not join in the insurer’s action, and did not assign her cause of action to the insurer. Reaffirming the well-settled proposition that the right of action against the tortfeasor remains in the injured employee, we hold that, unless the injured employee assigns her cause of action or voluntarily joins the litigation as a party plaintiff, the insurer may not enforce its statutory right to subrogation by filing an action directly against the tortfeasor. Accordingly, we vacate the judgment of the Superior Court and reinstate the order of the trial court, which sustained the preliminary objections filed by the tortfeasor and dismissed the insurer’s complaint with prejudice. Under these circumstances, we find it apparent that sanctioning a workers’ compensation carrier to pursue litigation of the injured employee merely by…


October 31st, 2018 by Rieders Travis in Workers' Compensation

Trunov v. Liberty Mut. Ins., 2018 Pa. Ct. of Common Pleas Lackawanna Co. LEXIS 1734 (August 31, 2018) Munley, J.- Pennsylvania law, specifically 77 P.S. § 671, applies to this matter and under 77 P.S. § 671, Liberty is entitled to a subrogation interest for repayment of New Jersey workers’ compensation benefits from any monies paid to Trunov from third party tortfeasors in the settlement of the Pennsylvania civil action. Liberty is not entitled to a workers’ compensation subrogation interest in any monies paid to Trunov from his employer USTP in the Pennsylvania civil action. 


July 5th, 2018 by Rieders Travis in Workers' Compensation

Gardner v. MIA Products Company, 2018 Pa. Super. LEXIS 551 (May 30, 2018) Ott, J.  Eric Gardner appeals from the order entered in the Court of Common Pleas of Lackawanna County, on February 27, 2017, granting summary judgment in favor of MIA Products Company and J & J Snack Foods Corp./MIA (MIA). The trial court determined that Gardner was a borrowed servant of MIA and, therefore, not entitled to file a tort claim against the company for injuries allegedly suffered while working there. In this timely appeal, Gardner raises two claims. First, he argues the trial should not have looked beyond the fact that he was not a statutory employee of MIA. Second, Gardner argues the trial court erred in concluding he was borrowed employee of MIA.2 After a thorough review of the submissions by the parties, relevant law, and the certified record, we agree that there are open issues of fact that prevent the proper grant of summary judgment. Accordingly, we reverse the order granting summary judgment and remand for trial. While there was evidence to support the trial court's conclusion that MIA was afforded the right to control the DelVal…


July 3rd, 2018 by Rieders Travis in Workers' Compensation

Whitmoyer v. Workers’ Compensation Appeal Board, 2018 Pa. LEXIS 2995 (June 19, 2018) Donohue, J.  The Pennsylvania Workers’ Compensation Act (“WCA”) makes an employer liable for paying the disability benefits and medical expenses of an employee who sustains an injury in the course of his or her employment. See 77 P.S. §§ 431 (disability), 531 (medical). This liability attaches without regard to the employer’s negligence. See id; see also Heckendorn v. Consolidated Rail Corp., 465 A.2d 609, 613 (Pa. 1983). Under section 319 of the WCA, however, employers (or their insurance carriers) are “subrogated to the right of the employe” and therefore entitled to reimbursement for certain expenses where a third party caused the employee’s injury. 77 P.S. § 671. The instant matter addresses a specific question about the scope of this reimbursement. Section 319 of the WCA provides, in pertinent part:  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 instalments…