In 2015, the Pennsylvania Supreme Court decided the matter of Liberty Mutual Insurance v. Domtar Paper, 113 A.3d 1230 (Pa. 2015). The issue before the court was whether Section 319 of the Pennsylvania Workers’ Compensation Act confers on an employer or its workers’ compensation insurance carrier a right to seek reimbursement of a subrogation lien directly against a third-party tortfeasor when the claimant in the workers’ compensation matter chooses not to pursue a cause of action against the third party in question.

Although the court in Liberty Mutual upheld long-standing common law in refusing to allow the workers’ compensation insurance carrier to bring the case “as subrogee” of the injured worker, the 3-2 decision (the court had two vacancies at the time) was closer than it should have been. Moreover, the case was decided on technical grounds that did not speak to the main issue of whether a claimant had control over his own case and with it, the power to negotiate with a the workers’ compensation carrier to bring the third party case at all, where the lien exceeds a prospective recovery. The decision created concern in the claimant’s bar that were a subsequent, similar matter to come before the Supreme Court with the addition of two justices unfriendly to civil justice, the result might be catastrophic for the injured worker. It is conceivable that the departure of Justices Seamus McCaffery and Ronald Castille after accepting the case but before deciding it had a significant bearing on the final outcome of Liberty Mutual, as the ultimate decision, which took about two years to reach, was so limited in scope and result that it begged the question why the court took the case in the first place.