Case Law Update | Protz v. WCAB (Pa. Cmwlth. December 10, 2015) | PA Work Injury

December 10, 2015

Filed today: http://www.pacourts.us/assets/opinions/Commonwealth/out/402CD15_1-6-16.pdf?cb=1

 

This has to do with subrogation regarding a 3d party med mal award Protz received regarding negligent treatment for her work injury.  Per CC, Employer/Insurer are entitled to subro reduction of med expenses and wage loss payments since settlement (but not prior to).  It’s more a statutory analysis of the MCARE act than a WC case per se, but worth knowing about if this arises for any of our claimants.  Definitely not as big a deal as Protz I.

 

Claimant sustained right knee injury in 2007.  Total knee replacement required, resulting in an “inadvertent transected popliteal artery.”  Subsequent repair surgery needed and she is still not well, with ongoing vascular problems. 

 

Claimant obtained a med mal settlement and Employer/Insurer filed review petition seeking subro rights.  CC affirms WCJ decision awarding Employer and Insurer subrogation from the time of the med mal settlement and going forward because Employer and Insurer “established that [Claimant]’s third party settlement was for the malpractice injury…sustained during surgery performed to treat the April 23, 2007, work injury and the complications that sprang from that injury,” for which Employer and Insurer were paying Claimant’s medical and indemnity benefits.

 

Employer responsible for Protz’s attorney fees and costs required to secure the med mal settlement, but entitled to 47% reduction in meds/wage loss after settlement & going forward.  MCARE statute bars subrogation prior to settlement.  CC reasons that this prevents Claimant from double recovery for the med mal aspect of her condition and keeps Employer from being on hook for med mal negligence.

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