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A Workers’ Compensation Carrier Cannot File An Action Against The Tortfeasor “On Behalf Of” An Injured Worker

February 18th, 2019

In Hartford Insurance Group On Behalf of Chunli Chen v. Kafumbra Kamara, et al, Pa. (November 21, 2018), the Pennsylvania Supreme Court reaffirmed the proposition that the right of action against the tortfeasor remains with the injured employee.  In addition, it clarified its prior holding in Liberty Mutual Insurance Co. v. Domtar Paper Co., 119 A.3d 1230 (Pa. 2015), by holding that a workers’ compensation carrier does not have the right to bring a third-party action against an alleged tortfeasor on behalf of an injured employee to recoup the amount it paid in workers’ compensation benefits where the employee did not independently sue the tortfeasor, did not join in the insurer’s action, and did not assign their cause of action to the workers’ compensation carrier.

In this case, the workers’ compensation carrier filed suit right before the statute of limitations was about to expire, “on behalf of” the injured employee in order to preserve its subrogation rights.  The verification for the complaint was signed by a representative of the workers’ compensation carrier.  The tortfeasor filed preliminary objections to the complaint in the nature of a demurrer arguing that under Domtar,  the right of action against a third-party remains with the injured employee.  The Hartford argued that it complied with Domtar, in that it filed its action “on behalf of” the injured employee, rather than in the name of the injured employee.  The trial court sustained defendant’s preliminary objections, but the Superior Court vacated the trial courts order and remanded holding that this case is distinguishable from Domtar because the insurer was not pursuing a subrogation claim directly against the third-party tortfeasor, but rather, on behalf of the injured employee.

The Pennsylvania Supreme Court granted allowance of appeal to examine whether its decision in Domtar permits a workers’ compensation carrier to enforce it subrogation rights by filing an action “on behalf of” the injured employee.  Ultimately, the Supreme Court held that merely captioning the complaint, “on behalf of,” cannot get around the jurisprudence established in Domtar that the right of action remains with the injured employee.  Accordingly, it vacated the judgment of the Superior Court and reinstated the order of the trial court.

Before Saylor, C.J., Baer, Todd, Donohue, Dougherty, Wecht, and Mundy, JJ.  Opinion by Justice Baer.  Justices Donohue, Dougherty, Wecht, and Mundy joined in the opinion.  Chief Justice Saylor filed a dissenting opinion in which Justice Todd joined.  Justice Todd also filed a dissenting opinion.

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