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Edder v. Workers' Compensation Appeal Board

Employer could not seek subrogation for its payment of disability benefits after employee received a medical malpractice settlement where it failed to prove that the settlement arose from malpractice that caused or increased the employer's liability under the Workers' Compensation Act.

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SUBMITTED: August 4, 2000

James Edder appeals from the order of the Workers’ Compensation Appeal Board (Board) that affirms the decision of the Workers’ Compensation Judge (WCJ) granting the petition of employer, Glenshaw Glass Company, to modify benefits in light of its subrogation interest in the proceeds of Edder’s settlement of a third party action. After review, we reverse.

Edder sustained an injury to his back on April 23, 1986 while working for Glenshaw Glass. As a result, he has not worked since June 9, 1986 and, pursuant to a notice of compensation payable, has received total disability benefits in the amount of $313.13 per week. In an effort to find relief from his back condition, Edder underwent surgery in February and November of 1987. Following the surgery in November, Edder’s disabling back and leg pain continued and he experienced new problems in the form of persistent neurogenic impotence and incontinence. Edder and his wife sued the surgeon for malpractice in failing to diagnose and treat Edder’s neurogenic dysfunction. They settled their claims in July of 1995 for the total amount of $850,000.00. Glenshaw Glass petitioned to modify benefits on the basis of its subrogation lien in the settlement proceeds under Section 319 of the Workers’ Compensation Act. *fn1

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