WORKERS’ COMPENSATION-SUBROGATION-COOPERATION OF EMPLOYEE

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 captioning the complaint as “on behalf of” the employee and including a bald assertion seeking any recovery due the employee, contravenes the very jurisprudence establishing that it is the injured worker who retains the cause of action against the tortfeasor. It is for these reasons that we reiterate our holding in Domtar Paper and clarify that absent the injured employee’s assignment or voluntary participation as a party plaintiff, the insurer may not enforce its Section 319 right to subrogation by filing an action directly against the tortfeasor.