Brubacher Excavating, Inc. v. Workers' Compensation Appeal Board

LEADBETTER, Judge,

Dissenting.

This case raises the novel issue of whether an employer paying workers’ compensation benefits can assert a subro-gation hen against an employee’s third party recovery from a subsequent employer when the recovery is based upon a civil rights claim stemming directly from the compensable injury. Because I believe that an employer may do so, I respectfully dissent.

Our courts have repeatedly recognized that subsequent events which do not flow naturally from the initial work-related injury may themselves, under certain circumstances, be compensable to the extent that they increase the level or duration of the disability. Hornetz v. Philadelphia & Reading Coal & Iron Co., 277 Pa. 40, 120 A. 662 (1923). Similarly, a recovery against third parties responsible for such *1281later events may be subject to subrogation under Section 319.1 Powell v. Sacred Heart Hosp., 99 Pa.Cmwlth. 575, 514 A.2d 241 (1986). Review of cases in this court reflects that a two-part test has emerged to determine whether subrogation is appropriate. The employer must establish: (1) a causal connection between the original work-related injury and the subsequent event for which a third party is liable;2 and (2) that as a result of the subsequent event employer was compelled to pay compensation benefits greater than those required by the initial injury.3 See Griffin v. Workers’ Compensation Appeal Bd. (Thomas Jefferson Univ. Hosp.), 745 A.2d 61, 64 (Pa.Cmwlth.1999); Powell, 514 A.2d at 244.

It is apparent that both prongs ®of the test have been met in this case. Claimant’s back injury caused Diesel Services’ insurance provider to deny coverage and that denial caused Diesel Services to terminate Bridges.4 First, the causal chain in the present case is even more direct than in the medical malpractice situation, where subrogation claims are routinely allowed. See, e.g., Powell, 514 A.2d at 245 [quoting Hornetz, 277 Pa. at 41, 120 A. at 662 (“The violence caused the injury, the injury caused the operation, the operation caused the anesthetization, the anesthetization caused dilatation of the heart, and dilatation of the heart caused death. Hence there was a causal connection between the [original] violence and [the subsequent] death.”) ]. Second, as a direct result of Diesel Services’ wrongful action, Brubacher’s weekly compensation payments to Bridges increased from $245.26 to $455.00. Accordingly, subrogation should have been allowed.

PELLEGRINI, Judge, joins this dissenting opinion.

. Section 319 of the Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671.

. Compare with Maitland Bros. Co., Inc. v. Workmen’s Compensation Appeal Bd. (Moser), 92 Pa.Cmwlth. 421, 499 A.2d 713 (Pa.Cmwlth.1985) (subrogation was disallowed because of the lack of a causal connection between claimant's work-related back injury and his subsequent automobile accident).

. Compare with Jefferson Med. College Hosp. v. Savage, 7 Pa.Cmwlth. 35, 298 A.2d 694 (1972) (subrogation was disallowed because the additional injury did not give rise to any additional compensation payments).

. Paragraph 26 of Bridges’ complaint against Diesel Services alleges, "Two weeks after Plaintiff commenced employment, an employee, agent, and/or servant of Defendant employer’s Worker’s Compensation insurer ... refused to extend required worker’s compensation coverage to plaintiff due to its concerns about potential actuarial risk presented by Plaintiffs prior back injury." (Emphasis added).

Paragraph 28 of the complaint alleges, "In spite of Plaintiff’s acknowledged superior qualifications for the position, Plaintiff's outstanding job performance, and Aetna’s written willingness to assume worker's compensation coverage for Plaintiff, Plaintiff was terminated by [Diesel] on approximately November 22, 1993.”