concurring.
I join in all issues disposed of by the majority except the issue of subrogation of consortium.
Workers’ compensation is a remedy in lieu of all common law rights of an employee to sue an employer for a work place injury.
Consortium is a common law right which is solely derivative of the injured spouse’s claim. While our Supreme Court has stated that a claim for loss of consortium is a separate and distinct claim, the Court did not negate the fact that a claim for loss of consortium stems from the spouse’s bodily injury. Anchorstar v. Mack Trucks, Inc., 533 Pa. 177, 620 A.2d 1120 (1993).
Since it is derivative, the consortium proceeds should necessarily be subject to the claim of the subrogation. As such, third-party claim proceeds should be entirely subject to subrogation to the worker’s compensation benefits. We should hold true to the historical foundations of the legal doctrines with which we deal. Verdict and court agreements should not undermine the inherent dependence of consortium or exemplary damages upon the spouse’s claims for compensatory damages. Without a worker’s bodily injury, there would be no separate claim for loss of consortium by the spouse.
I would hold that as a matter of láw all third-party claim receipts, including the separate claim for loss of consortium arising out of a spouse/worker’s injury, be subject to subrogation.