34 Pa. Commw. 31 | Pa. Commw. Ct. | 1978
Opinion by
Petitioner appeals the denial by the Workmen’s Compensation Appeal Board of a request to suspend compensation payments and for subrogation rights to a fund created by the settlement of a malpractice claim by a Respondent (Claimant).
An open compensation agreement was entered into on April 2, 1970, under which Claimant was to receive compensation at the rate of $42.06 per week beginning January 31, 1970 and for medical and hospital expenses. Pursuant to this agreement Petitioner made medical payments of $1,803.70 for the two surgical operations and also made compensation payments during the period between the two operations. In September 1971 Claimant instituted a civil suit against the physician to recover damages that resulted when the cottonoid padding was left in the incision. This action resulted in a settlement before trial in which Claimant received $30,000.
Petitioner, through its insurance carrier then filed a petition to suspend payments and determine rights of subrogation, alleging the negligence of the physician had caused an aggravation of the original injury. In her answer and new matter, Respondent alleged her disability caused by the cottonoid padding had ter
Petitioner has framed two questions in this appeal: (1) Where the original compensable injury is aggravated by the negligence of a physician treating the injury is the employer subrogated to the funds recovered in a settlement of a claim against the physician; and (2) Even if the injuries caused by the medical treatment were different from those sustained in the original accident should subrogation against the funds be awarded 1
Petitioner’s claim to subrogation is based on Section 319 of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §671 which provides in relevant part:
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 compensation payable under this article by the employer. . . .
The rationale for this right of subrogation was noted in Stark v. Posh Construction Co., 192 Pa. Superior Ct. 409, 162 A.2d 9 (1960) where the Court stated equity requires the employer should not be compelled to make compensation payments to his em
Where the negligent conduct of a third party occurs while the employee is actually engaged in the business of his employer there is a clear right of the employer under Section 319 to subrogation. See Bumbarger v. Bumbarger, 190 Pa. Superior Ct. 571, 155 A.2d 216 (1959). But where, as here, the negligent conduct occurs after the original accident and injury, the statute, and its equitable underpinnings require the injuries be examined with closer scrutiny. Consequently when this Court considered the employer’s right to subrogation to a fund created by a malpractice settlement in Savage v. Jefferson Medical College Hospital, 7 Pa. Commonwealth Ct. 35, 298 A.2d 694 (1972), we held that where the negligent treatment results in a new and different injury separate and apart from the original compensable injury the employer receives no subrogation rights.
The import of Savage and Stark, supra, to the case at bar is clear: in order to establish a right of subrogation the employer must show he is compelled to make payments by reason of the negligence of a third party and the fund to which he seeks subrogation was for the same compensable injury for which he is liable under the Act. Petitioner contends he has established these factors and shown that the injuries sustained by Claimant as a result of the malpractice were an aggravation of her original back injuries by his submission of Claimant’s civil complaint against the physician. We do not think the complaint is conclusive.
Initially, we note that where assertions of fact are made in a pleading, these averments may constitute “judicial admissions.” Tops Apparel Manufacturing Co., Inc. v. Rothman, 430 Pa. 583, 244 A.2d 436 (1968).
But given the admissibility of the complaint, we must ask: Does the complaint by clear and unequivocal evidence show the Claimant asserted therein that the physician’s conduct had caused an aggravation of her injuries 1 In support of an affirmative answer, Petitioner bottoms his argument on Paragraph 23 of the complaint which states:
As a further result of the negligence of the defendant [physician] and the resulting injuries, the Plaintiff, Edith J. Bressi, has suffered the following damages: ... (f) she will be totally and permanently disabled which she would not have otherwise been.
However, this admission does not in any way show that the particular disability was an aggravation of the old injury or an entirely new and independent injury. The specific averments which preceded this conclusionary statement allege damages for the infection alone. Nowhere in the complaint does Claimant allege that the original back problem for which she sought treatment had been “aggravated” by the infection.
Where the employer seeks to change the status of the parties created by the compensation agreement by a Petition to Suspend Payments and to Determine
Finally, Petitioner urges this Court to reject its holding in Savage, supra. This we are unwilling to do. If this Court is incorrect in its interpretation of the legislative intent, the remedy is in the hands of the legislature or the Supreme Court.
Accordingly, we will enter the following.
Order
And Now, February 28, 1978, the decision of the Workmen’s Compensation Appeal Board, No. A-716-92, dated December 16, 1975, is hereby affirmed.