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Workers' Comp Subrogation Rights

January 31, 2019

I recently read a newsworthy article from the National Workers' Compensation Defense Network by Robert F. Horn, Esquire.  In a nutshell, the article desribes a recent Pennsylvania Supreme Court decision that seems to restrict the Employer's rights of Subrogation against a negligent party where the employee has no interest in participating in the recovery action.  The full article can be found HERE. The actual question asked in the 'Domtar' case was this: "Does Section 319 of the Pennsylvania Workers' Compensation Act, 77 P.S. § 671, allow an employer/insurer to step into the shoes of an injured employee to subrogate against the negligent tortfeasor causing the injuries resulting in the payment of workers' compensation benefits?"  IMHO, the implication of the ruling serves to limit the independent rights of the Employer to recover costs associated with a Workers' Compensation claim that impact their Workers' Comp Experience Mod (XMod) and therefore the employer's long-term Workers' Compensation costs.  The court was not unanimous on their position and I sense that the judges that chimed in with the minority opinion actually got it right.  

Update 7/13/15 - According to one of our insurance carriers (Synergy), it is still possible for the Carrier to file for subrogation by identifying the Claimant/Plaintiff as a 'use Plaintiff' in confromance with the PA Civil Rule of Procedure 2002(b).  They go on to say that from a practical standpoint this means the Plaintiff may thereby realize that they may be entitled to additional recovery and jump on board with the civil action... no problem there from my perspective: legitimate claims should always be paid and a claimant that is entitled to benefits should receive them.  

Disclaimer: The information provided in this blog post is intended for general knowledge and informational purposes only, and does not constitute professional insurance advice. The content is not exhaustive and does not cover all potential situations. It is essential to review your specific insurance policy and discuss your individual circumstances with your insurance agent or broker. We strongly recommend that you consult with a qualified insurance professional to address your insurance needs and questions.

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