Poole v. Workers' Compensation Appeal Board (Warehouse Club, Inc.)

770 A.2d 385, 2001 Pa. Commw. LEXIS 190
CourtCommonwealth Court of Pennsylvania
DecidedApril 5, 2001
StatusPublished
Cited by5 cases

This text of 770 A.2d 385 (Poole v. Workers' Compensation Appeal Board (Warehouse Club, Inc.)) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Poole v. Workers' Compensation Appeal Board (Warehouse Club, Inc.), 770 A.2d 385, 2001 Pa. Commw. LEXIS 190 (Pa. Ct. App. 2001).

Opinions

McGINLEY, Judge.

William R. Poole, Jr. (Claimant) seeks review of an order of the Workers’ Compensation Appeal Board (Board) that affirmed the Workers’ Compensation Judge’s (WCJ) granting of Warehouse Club, Inc.’s (Employer) request for subro-gation.

The WCJ made the following pertinent findings of fact:

6. This Workers’ Compensation Judge finds, based on her prior Decisions, that the claimant was employed by the defendant employer on March 8, 1989, as a wholesale canvasser at an average weekly wage of $155.87. The claimant sustained an injury (aggravation of a preexisting back condition) in the course of his employment on March 8, 1989, when the claimant slipped on ice and fell in the parking lot in front of the defendant employer’s building. The claimant was awarded workers’ compensation benefits for temporary total disability relating to the March 8, 1989, injury at the rate of $140.28 per week beginning March 9, 1989. The claimant’s disability benefits were commuted by Order of this Workers’ Compensation Judge circulated on September 26, 1996. The claimant as a result of that Order, was paid $50,540.00 representing the moneys due the claimant for partial disability benefits and $20,460.00 for unreimbursed medical expenses.
7. The claimant, on May 6, 1995, based on the pleadings filed in the legal malpractice action, filed a civil complaint against his former legal counsel alleging that his former legal counsel had been [386]*386negligent in his representation of the claimant as the claimant’s third party complaint had been filed against the wrong parties. The third party complaint had been filed against Kossman Development and Paul Kossman alleging that Kossman Development Company was owned by Paul Kossman and that Kossman Development Company were [sic] the owners of the property where the claimant had fallen on March 8, 1989. The claimant’s third party complaint against Paul Kossman and the Kossman Development Company was dismissed by the Westmoreland County Court of Common Pleas on May 27, 1992, as the Court found that Paul Koss-man and Kossman Development Company were the incorrect parties. The claimant was unable to file a third party complaint against the correct parties since the two (2) year statute of limitations had expired.
8. Travelers Insurance Company, based on the letters from the claims representatives dated October 19, 1995, and July 23, 1998, and on Mr. Tarasi’s July 23, 1998, letter requested subrogation against any moneys obtained by the claimant as a result of the legal malpractice suit. The claimant denied the defendant insurer’s request for subrogation on the basis that no workers’ compensation lien existed against the legal malpractice action.
9. The claimant, on July 22, 1998, filed a Praecipe to Settle and Discontinue the legal malpractice action stating that the matter had been settled.
10. Claimant’s current counsel has refused to provide defendants [Employer and Insurer] with any information regarding the settlement alleging that the claimant is precluded from releasing such information by a confidentially clause contained in the settlement agreement for the legal malpractice action.
11.This Workers’ Compensation Judge finds, based on the record as a whole, that the defendants [Employer and Insurer] are entitled to subrogation against the moneys received by the claimant as a result of the legal malpractice action. The legal malpractice action arose from a third party claim filed for the injuries sustained by the claimant on March 8, 1989, in the course of the claimant’s employment with the defendant employer. The claimant was paid workers’ compensation benefits for the March 8, 1989, injuries. The claimant had to establish that the claimant would have recovered in the initial third'party claim in order to recover any damages in his legal malpractice action and could not recover more moneys in the legal malpractice action than the claimant could have obtained in the initial third party action. Denial of the defendants’ [Employer and Insurer] request for sub-rogation would result in double recovery for the claimant and would violate the intent of § 319 of the Workers’ Compensation Act.

WCJ’s Decision, March 26, 1999, Findings of Fact Nos. 6-11 at 3-5.

The WCJ determined that Employer and Insurer were entitled to subrogation and ordered Claimant to disclose the amount of the settlement of the legal malpractice action.

The Board affirmed in part and remanded for further proceedings:

As noted by the federal court in Graham [v. Liberty Mutual Group, No. 97-4507, 1998 WL 961376 (E.D.Pa. December 14, 1998)] there is a strong public policy against double recovery and an employer’s absolute right to subrogation is the most effective method of preventing a double recovery by injured work[387]*387ers. We further agree with the court that no distinction should lie between a worker who recovers directly from a third party tortfeasor and one who recovers from his or her attorney because of the third party tortfeasor’s same tor-tious conduct. We are satisfied that it was not the intent of the Legislature to make an employers’ right to subrogation dependent upon the competence or incompetence of Claimant’s attorney.
As a result, we believe that the principles of equity direct us to affirm the decision of the Judge granting Defendant’s [Employer] request for subrogation.

Board’s Decision, September 28, 1999, at 6-7.

On appeal1 Claimant contends that Employer does not have a right of subrogation to the proceeds of his settlement with his former attorneys. Specifically, Claimant asserts that his legal malpractice claim was for breach of contractual duties and not for his physical injury.

Section 319 of the Workers’ Compensation Act (Act)2, 77 P.S. § 671 provides:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe ... against such third party to the extent of the compensation payable under this article by the employer .... 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 installments of compensation, (footnote omitted).

The question of whether the employer or its workers’ compensation carrier has a right of subrogation to a legal malpractice claim under Section 319 of the Act has not been addressed by our Pennsylvania courts. However, our Pennsylvania Supreme Court has provided some insight concerning the rationale behind the right of subrogation and its applicability.

In Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653 (1980), Edith Bressi (Bressi) had sustained a work-related injury to her back in the nature of a ruptured disc. Bressi underwent surgery for removal of the disc. “The parties entered into an open compensation agreement under which claimant [Bressi] was to receive weekly compensation plus medical and hospital expenses.” Id. at 495, 421 A.2d at 654.

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Poole v. Workers' Compensation Appeal Board (Warehouse Club, Inc.)
770 A.2d 385 (Commonwealth Court of Pennsylvania, 2001)

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Bluebook (online)
770 A.2d 385, 2001 Pa. Commw. LEXIS 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poole-v-workers-compensation-appeal-board-warehouse-club-inc-pacommwct-2001.