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Any potential recovery a claimant might receive from an Americans With Disabilities Act suit is not subject to subrogation by an employer or its insurance carrier, the Pennsylvania Commonwealth Court has ruled en banc. Two judges dissented from the case of first impression. The two dissenting judges said the Workers’ Compensation Act and case law urged the court to allow the employer to assert subrogation rights. But the majority in Brubacher Excavating Inc. v. Workers’ Compensation Appeal Board (Bridges), led by Commonwealth Court Judge Bernard McGinley, said it was an issue of causation. There was no way the alleged discrimination against the claimant was causally related to his original work injury. The claimant, James Bridges, worked for Brubacher as a master mechanic. He injured his back at work on Sept. 17, 1992, while he was lifting a cylinder head from an engine. Bridges gave Brubacher notice of the injury the next day. Bridges received $455 per week in total disability benefits between Sept. 19, 1992, and Nov. 8, 1993, when he began working for Diesel Services Inc. as a service writer/adviser. In his new position, Bridges earned $400 per week. He continued to receive partial disability benefits of $245 per week. However, Diesel’s workers’ compensation insurance carrier refused to cover Bridges, and he was terminated two weeks into his employment. Bridges’ total disability benefits were reinstated on Nov. 22, 1993, and he has remained on total disability since, McGinley said. In 1995, Bridges filed a suit against Diesel under the ADA, requesting $50,000 in compensatory and punitive damages. Brubacher and its workers’ comp insurance carrier asserted their right to subrogation against any recovery Bridges might receive, but a workers’ compensation judge said they were not entitled to subrogation because the injury alleged in the civil action was unrelated to the work injury. The Workers’ Compensation Appeal Board affirmed and Brubacher appealed. McGinley said the state supreme court has addressed a similar issue in its 1980 decision, Dale Manufacturing Co. v. WCAB. The claimant in Dale Manufacturing sued the doctor who left a cottonoid pad inside her during surgery for her work-related injury. The employer sought to enforce its subrogation rights on the recovery she received, arguing that the doctor’s negligence aggravated the work injury. As evidence, the employer offered only the civil complaint against the doctor, but the complaint did not establish that the subsequent surgery the claimant underwent in any way aggravated her work injury or caused a new injury. The court said the employer had not offered enough evidence. The court said in order for an employer to successfully assert a right of subrogation in such a situation an employer must show it “is compelled to make payments by reason of the negligence of a third party and the fund to which [it] seeks subrogation was for the same compensable injury for which [it] was liable under the act.” In Bridges’ case, McGinley said, the WCJ found he sustained two separate injuries. “Firstly, Bridges suffered a back injury while employed by Brubacher and second, Bridges was a victim of intentional discrimination incurred whole employed by Diesel,” McGinley said. “The discriminatory conduct on the part of Diesel was totally unrelated to the performances of his duties as a master mechanic with Brubacher and we believe the discharge was separate and apart from his original back injury. Section 319 of the act requires causation between the injury and the act or omission of a third party to facilitate subrogation.” TWO-PRONG TEST In a dissenting opinion joined by Commonwealth Court Judge Dan Pellegrini, Judge Bonnie Brigance Leadbetter said the court should have utilized a two-prong test that has emerged from two Commonwealth Court cases, Powell v. Sacred Heart Hospital, from 1986, and the 1999 case Griffin v. WCAB (Thomas Jefferson Univ. Hospital). She pointed out that under Section 319 of the Workers’ Compensation Act, a recovery against the third parties responsible for subsequent events that increase the level or duration of a work-related injury is subject to subrogation. The test calls for an employer to establish a causal connection between the work injury and the subsequent event and that the subsequent event required the employer to pay more in workers’ compensation benefits than necessitated by the original injury. Leadbetter said both prongs were met in Bridges’ case. “[Bridges'] back injury caused Diesel Services’ insurance provider to deny coverage and that denial caused Diesel Services to terminate Bridges,” she said. “First, the causal chain in the present case is even more direct than in the medical malpractice situation, where subrogation claims are routinely allowed. Second, as a direct result of Diesel Services’ wrongful action, Brubacher’s weekly compensation payments to Bridges increased from $245 to $455.” ANOTHER APPROACH But President Judge Joseph Doyle proposed a third approach of analysis in his concurring opinion. He said that although he agreed with the majority’s conclusion, he did not agree with its analysis or the dissent’s. Instead of the two-prong test the dissent perceived in Powell, Doyle said the court should have been instructed by the causation analysis used in that case, which found the court distinguishing Dale. Doyle said that in order to determine the causal connection between the work injury and the subsequent event, the Powell court used an analysis that is “analogous to the traditional tort standard of causation referred to as proximate or legal cause: an actor’s conduct is the legal cause of harm where the conduct is a substantial factor in bringing about the harm.” Applying those principles to Bridges’ case, Doyle said the subsequent event — the ADA action — was not causally connected to Bridges’ back injury. “The civil rights claim against Diesel Services was an absolute distinct cause of action secured by a federal statute, a statute rooted in social policy, and the action was based on the intentional wrongful conduct of Diesel,” Doyle said. “Therefore, the majority correctly concluded that the board did not err in denying Brubacher’s petition for a subrogation lien.”

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