concurring and dissenting.
I concur with Parts IIB, IIC and IID of the majority opinion. However, because I believe that the loss of consortium damages here, as established by settlement agreements between Peoples Natural Gas Company (Peoples) and the spouses, are not subject to Darr Construction Company’s (Employer) right of subrogation, I respectfully dissent with respect to Part IIA of the majority opinion.
In its analysis, the majority ignores the basic concept of subrogation: the substitution of one person in the place of another with reference to a lawful claim, demand or right, such that he who is substituted succeeds to the rights of the other in relation to the claim and its rights or remedies. In other words, subrogation is the right to recoup money that one has paid to an individual pursuant to a claim after another has paid the person with respect to the same obligation. Black’s Law Dictionary 1279 (5th ed.1979). Here, Employer never paid anything to the claimants or their spouses for loss of consortium; indeed, there is no assertion here that Employer has an obligation under the Workers’ Compensation Act (Act),1 or under any other law, to pay loss of consortium damages to any employee or spouse.
*1312I. The Act2
Section 319 of the Act, 77 P.S. § 671, which establishes an employer’s right to sub-rogation, provides that, where an injury is caused in whole or in part by a third party, “the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents against such third party.” Thus, an employer’s sub-rogation rights are derived from the rights of specific kinds of claimants. In this case, Employer asserts a subrogation right against the claimants’ spouses; however, it is obvious to me that the spouses here are not “employees,” “personal representatives,” “estates,” or “dependents.”3 Thus, Employer’s subro-gation rights do not arise in relation to the spouses’ rights against Peoples.
Furthermore, an employer’s subrogation rights cannot rise higher than a claimant’s rights. Section 306 of the Act, 77 P.S. §§ 511-541, which is the schedule of compensation available under the Act, shows that a claimant may receive: (1) total “disability” benefits; (2) partial “disability” benefits; (3) specific loss benefits; (4) medical benefits; or (5) death benefits. It is obvious to me that loss of consortium benefits are not included in these categories. If a claimant has no right to consortium benefits under the Act, then a spouse, whose only rights under the Act are derived from the claimant’s, has no right to consortium benefits under the Act. An employer, who stands in the claimant’s shoes with respect to subrogation rights, is barefoot as well.
This view is supported by our supreme court’s explanation of subrogation in Anderson v. Borough of Greenville, 442 Pa. 11, 273 A.2d 512 (1971):
[T]here is implicit in the doctrine of subro-gation an equatability between the obligation of the compensation payor and the obligation of the tortfeasor payor, so that the two funds are going to satisfy the same duty, liability or obligation to the same person.
Id. at 16, 273 A.2d at 515. Here, Employer is trying to recover “disability” compensation, i.e., loss of wages benefits, from the spouses’ settlement with Peoples for loss of consortium damages. Quite clearly, there is not an equatability between Employer’s obligation to pay “disability” compensation and Peoples’ obligation to pay loss of consortium damages. Thus, following Anderson, Employer has no subrogation rights with respect to the spouses’ settlement with Peoples for loss of consortium.
In sum, because Employer’s only interest as a subrogor under section 319 of the Act is in the rights of “employees,” “personal representatives,” “estates,” or “dependents,” against third-party tortfeasors, and spouses here are none of those, Employer can have no claim against the spouses’ settlement with Peoples. Moreover, because an employer’s subrogation rights cannot be greater than the rights of a claimant under the Act, and because section 306 of the Act limits a claimant’s award to total “disability” benefits, partial “disability” benefits, specific loss benefits, medical benefits and death benefits, Employer here can have no interest as a subrogor in the spouses’ settlement for consortium damages.
II. Relevant Case Law
I am not persuaded otherwise by the fact that, in Dasconio v. Workmen’s Compensation Appeal Board (Aeronca, Inc.), 126 Pa.Cmwlth. 206, 559 A.2d 92 (1989), this court stated that an employer would be an interested party as a subrogor in a third-party tortfeasor action at the common pleas level. (Majority op. at 1306.)
*1313In Dasconio, the claimant and his wife instituted a civil action, which included a cause of action for loss of consortium, inter alia, against a third-party tortfeasor and, unlike here, accepted a lump sum payment in settlement of the entire matter. That single lump sum payment necessarily included an amount for “disability” compensation as well as compensation for loss of consortium. Because the employer had an interest as a subrogor in the “disability” component of the lump sum payment, and because the workers’ compensation system lacks jurisdiction to decide the amount attributable to consortium damages, we permitted the employer to assert its subrogation rights against the entire lump sum payment.
Here, there is no single lump sum payment; rather, having executed their own settlement agreements, the spouses received separate loss of consortium settlement checks. While Employer clearly has an interest as subrogor in the amount of the “disability” checks given to the claimants, Employer has no interest as a subrogor in the amount of the consortium payments made to the spouses.
I also believe that the majority’s reliance upon Dasconio is misplaced with regard to the proposition that the spouses’ consortium settlement agreements -with People’s do not constitute cognizable determinations of the consortium damages.4 (Majority op. at 1307.)
In Dasconio, when faced with a single lump sum payment, this court pointed out that there is no authority or jurisdiction in the workers’ compensation system for determining what portion of that single lump sum payment is attributable to loss of consortium damages. Quoting Fidler v. Workmen’s Compensation Appeal Board (United Cable Corp.), 83 Pa.Cmwlth. 155, 478 A.2d 907, 911 (1984), we then stated that claimants have to raise such issues in the trial court, or “as a part of ... a third-party settlement.” Dasconio, 559 A.2d at 100.
Thus, when we subsequently explained in Dasconio that a claimant’s failure to- resolve the loss of consortium issue in the common pleas proceeding leaves the claimant with a failed burden of proof, (Majority op. at 1306), we were not saying that evidence of a third-party consortium settlement, like those here, failed to satisfy a claimant’s burden of proof. In fact, I believe that, if there had been a third-party consortium settlement in Dasco-nio, instead of the single lump sum payment, this court would have reached a different result. Indeed, since Dasconio, this court has recognized that a consortium settlement agreement between a spouse and a third-party tortfeasor would be sufficient to establish the amount attributable to loss of consortium. See Pendleton v. Workmen’s Compensation Appeal Board (Congoleum Corp.), 155 Pa.Cmwlth. 440, 625 A.2d 187, 189 (1993).
III. Conclusion
It is indisputable that, under the Act, an employer can never assert subrogation rights with respect to spouses who are not “dependents” or with respect to consortium damages. Furthermore, this court has recognized that third-party settlement agreements are sufficient to establish the amount of consortium damages in an action. Accordingly, I would reverse the Workmen’s Compensation Appeal Board’s determination that the entire settlement amount in this case is subject to Employer’s right of subrogation.
SMITH, J., joins in this concurring and dissenting opinion.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S.§§ 1-1041.4.
. Although the majority fails to cite any provision of the Act in its analysis of this issue, I believe that the Act itself is the proper starting point for determining the extent of an employer’s subrogation rights under the Act.
. Our supreme court has stated that, in section 319 of the Act, the term "dependents” refers to persons entitled to compensation under the Act, Anderson v. Borough of Greenville, 442 Pa. 11, 273 A.2d 512 (1971); spouses are not entitled to compensation under the Act as “dependents” unless the employees are deceased, which is not the case here. See Section 307 of the Act, 77 P.S. § 561.
Moreover, I note that, in a civil action for loss of consortium, a spouse is not entitled to consortium damages after the marital partner has died. See 21 Standard Pennsylvania Practice 2d § 116:41 (1995). Thus, if the employees here had died, their spouses would not have even had a civil cause of action against Peoples for loss of consortium.
. Evidently, the majority believes that people will abuse the system if this court permits settlement agreements between spouses and third-party tortfeasors to suffice as evidence of the amount of consortium damages in a civil action. For example, one might argue that the parties could agree to a $100,000 total settlement, with $80,-000 attributable to consortium damages and only $20,000 attributable to disability.
However, if an employer believes that a particular settlement agreement is an attempt to defraud the employer of its subrogation rights, then the employer has recourse in the court of common pleas. Furthermore, the legislature can easily remedy this concern by amending the Act to require the employer’s participation in the settlement of any civil action against a third-party tortfeasor which involves the employer's subrogation rights under the Act.