Case Law Update I Reed v. WCAB (Allied Signal) (Pa. Cmwlth. 879 C.D. 2014, filed April 21, 2015) | PA Work Injury

April 22, 2015

Original claimant was granted compensation for asbestosis in 1985.  Benefits suspended 1990 for failure to follow through on reasonably available work.  In 1992, claimant was part of a group settlement of a 3d party (Owens Illinois) tort action for “$1.00 and or other consideration.”  Employer sought specific amount of settlement claimant received for subrogation purposes and to recalculate compensation due to claimant, who is since deceased, but never received a response from counsel, Robert Murphy, who was counsel for claimant then and now.  Previous litigation concluded in Employer’s favor in 2007, when SCOPA declined to grant.  Original claimant’s daughter is now Claimant, who filed petitions seeking review, modification, and reinstatement shortly after conclusion of underlying litigation.

 

WCJ: Dismiss petitions.  Claimant has consistently denied that any recovery was obtained beyond the $1.00 in the agreement.  Counsel from firm that represented 3d party in the 1992 settlement testified and although he had not been involved in that settlement, he stated it was common to phrase agreements with the “$1.00 and or other consideration” in order to maintain confidentiality.  This was acceptable “business records” testimony and not hearsay.  It is clear that decedent received something more.  Employer, which was not party to that settlement, not bound to prove amount; it is Claimant’s burden to do so, and she has failed to do so.  In fact, Claimant’s counsel has been involved in this case at least since the settlement and the 3d party funds would have gone through him.  Because Employer’s obligation to pay compensation previously awarded remains awaiting satisfactory documentation of the 3d party settlement amount, suspension remains in place and Claimant’s petitions are dismissed.  WCAB affirmed.

 

Cmwlth Ct: Affirm.  Employer met burden to trigger automatic subrogation, which was to show that it was compelled to make payments to original claimant’s work-related injury, that the injury was fault of a 3d party (Owens), and that the original claimant did in fact receive additional funds for the same injury from the 3d party.  Statute does not call on Employer to prove the amount.  Also, WCJ decision was well reasoned, did not capriciously disregard evidence or testimony.  Moreover, “this Court continues to be disturbed by the conduct of Claimant’s counsel” including “ignorance of the rules of appellate procedure, an allegedly deplorable record keeping [that] is without excuse.”  Counsel is directed to take heed of RPC’s on diligence, meritorious claims and contentions, expediting litigation, candor toward tribunals, misconduct, and safekeeping property.

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