In this аppeal, we are asked to correct a legislative oversight appearing in the initial draft of the Motor Vehicle Financial Responsibility Law. 1 The trial court, applying literally the language of the statute and the substantive law оf this Commonwealth, held that a pedestrian employee could effect a double recovery from the third party tortfeasor even though she had previously been paid benefits by her employer’s workers’ compensation carrier. After careful review, we agree with the learned trial judge that the deficiency in the statute was for the legislature to correct.
On October 6, 1989, Constance Palmosina, an employee of Mellon Bank, was struck at an intersectiоn in Carnegie by a Laidlaw Transit bus operated by Frances Wilson. Because of injuries received, Palmosina was paid workers’ compensation benefits which included the cost of medical expenses and wages lost. In a separаte action against Laidlaw Transit and Wilson, a jury awarded damages of $853,500.00 to Palmosina and $50,900.00 to her husband. Included in Palmosina’s damages were medical expenses of $205,408.56 and lost wages of $53,649.47 for which Palmosina had previously been reimbursed by workеrs’ compensation. On appeal from the judgment entered on the verdict, the defendants contend, inter *123 alia, that the trial court erred when it allowed the plaintiffs to introduce evidence in their third party action of the medical еxpenses and lost wages which Palmosina had already recovered in the workers’ compensation claim.
Historically, workers’ compensation benefits have been considered a collateral source of recovery in a plaintiffs action against the third party tortfeasor.
Zawoyski v. Pittsburgh Rys. Co.,
When the legislature enacted MVFRL, however, it took away the employer’s right to be subrogated from tort recoveries in actions arising out of motor vehicle accident cases. See:
*124
75 Pa.C.S. § 1720 (1984) (amended 1990) (repealed in part 1993). See also:
Fulmer v. Pennsylvania State Police,
167 Pa.Commw. 60, 64-65,
When MVFRL was enacted in 1984, it contained a provision at 75 Pa.C.S. § 1722 as follows:
In any action for damages against a tortfeasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in section 1711 (relating to required benefits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under section 1711. This preclusion applies only to the amount of benefits set forth in section 1711.
75 Pa.C.S. § 1722 (1984) (amended 1989) (amended 1990) (repealed in part 1993) (emphasis supplied).
On April 26,1989, this Section was amended to read:
In any action for damages against a tortfeasor arising out of the maintenance or use of a motor vehicle, a person who is еligible to receive benefits under the coverages set forth in section 1711 (relating to required benefits) or the coverage set forth in section 1715(a)(l.l) (relating to availability of adequate limits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under sections 1711 or 1715(a)(l.l). This preclusion applies only to the amount of benefits set forth in sections 1711 and 1715(a)(l.l).
*125 75 -Pa.C.S. § 1722 (1989) (amended 1990) (repealed in part 1993) (emphasis suрplied). 2 When the accident in this case occurred on October 6, 1989, this section of the statute was in effect. As a reading thereof suggests, the statute did not preclude recovery for workers’ compensation benefits previously paid.
However, in February, 1990, effective in July, 1990, the statute was amended and rewritten to read as follows:
In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use оf a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment оf benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this sub-chapter, or workers’ compensation, or any program, group сontract or other arrangement for payment of benefits as defined in section 1719.
75 Pa.C.S. § 1722 (1990) (repealed in part 1993) (emphasis supplied). 3
Because the legislature could not reasonably have intended to allow a double recоvery, it is argued, the omission of pre1990 language precluding recovery for workers’ compensation benefits must have been inadvertent. A similar argument was made and accepted by a federal trial court in Postorino v. Schrope, 736 F.Supp. 639 (E.D.Pa.1990). There, the plaintiff had been struck by defendant’s automobile in a parking lot in Allentown while engaged in his duties as a supermarket employee. The defendant moved to exclude at trial evidence of plaintiffs medical expenses and wage loss pursuаnt to 75 *126 Pa.C.S. § 1722. The motion was granted upon the court’s determination that such preclusion was intended by the Pennsylvania legislature as a quid pro quo for elimination of the workers’ compensation carrier’s traditional right of subrogation. Postorino v. Schrope, supra at 641. Relying uрon the legislature’s express intent to coordinate benefits, 75 Pa.C.S. § 1719, the court included workers’ compensation benefits within the limited scope of section 1722. See also: Hertel v. Parke, 48 Pa.D. & C.3d 456 (Lycoming 1987).
The
Postorino
court, however, ignored the specific language of the stаtute then in effect and rewrote the statute as the court believed the legislature may have intended. This was improper. As the Supreme Court opined in
Commonwealth ex rel. Cartwright v. Cartwright,
Moreover, by amending the statute again in 1990, the legislature reinforced that there had previously been no intent to preclude recovery for workers’ compensation benefits. “A change in the language оf a statute ordinarily indicates a change in legislative intent.”
Masland v. Bachman,
Therefore, other trial courts have chosen to follow the plain language of 75 Pa.C.S. § 1722 in effect prior to 1990 and have not precluded plaintiffs from pleading, proving and recovering amounts paid by workers’ compensation. See:
Templin v. Hansford,
No. 88-8998,
*127
In
Davish v. Gidley,
We recognize that in
Ducjai v. Dennis,
Under the 1989 amendment, however, the statute does not preclude the double recovery decried by appellants, and the substantive tort law prevents a wrongdoer from taking advantage of the fortuitous existence of a collateral source of recovery.
Boudwin v. Yellow Cab Co.,
*128 We hold, therefore, that the trial court did not err when, in this third party tort action, it allowed recovery for medical expenses and wage losses previously recovered by the plaintiff in a workers’ compensation claim.
There is no merit in the remaining assignments of error made by appellants. The admission of photographs into, evidence is within the discretion of the trial court.
Fahringer v. Rinehimer,
It also was not an abuse of discretiоn to allow evidence of Mrs. Palmosina’s circumstances which compounded her emotional and psychological suffering. Although misfortunes occurring to other family members are generally not relevant, much must be left to the discretion оf the trial court. There was no abuse of discretion in this case.
Finally, the trial court’s instructions on the duty to mitigate damages were adequate and correct. The court was not required to adopt precisely the language submitted by the appellants.
Judgment affirmed.
Notes
. As we shall see, the legislature itself has corrected this oversight by amendment.
. Section 1711 set forth the coverage amounts of required medical, income loss and funeral benefits. Section 1715(a)(l.l) required an insurer to make avаilable for purchase additional coverage for extraordinary medical benefits.
. In 1993, the legislature concurrently repealed sections 1722 (relating to preclusion of benefits) and 1720 (relating to subrogation) insofar as they relate to benefits under the Workers’ Compensation Act.