By Michael McCadden, Esq.
At long last I get a forum to explain why subrogation is cool without being cut off and called a nerd. Let me ask you this: Is there any workers’ comp judge in the entire Commonwealth of PA where you can predict an absolute win when you see the Notice of Assignment of Petition? Let me assure you, such a judge does not exist. I can, however, readily identify some judges where you have an almost absolute chance of losing, no matter what evidence you present. Conversely, our Supreme Court has unequivocally stated that an employer’s right to subrogation pursuant to Section 319 of the Act is ABSOLUTE. It is the ONLY area of workers’ comp where we hold all the cards.
I was thinking (again) today about how cool subrogation is as I walked out of a third party mediation simply because the plaintiff and defendants were wasting our time. We do not have to compromise our lien merely because “the case will have to go to trial.” (Why do trial lawyers whine about trying cases these days? – Isn’t that what they are supposed to do?) While I was waiting in this mediation I heard a story about a plaintiff’s attorney who tried tell my client how they had compromised their lien in another case, and it became a “he said, she said” situation as to whether someone at the employer had in fact agreed to a compromise. It didn’t matter since an oral waiver or compromise is not binding. How cool!
I have heard, a kazillion times how my client “has to negotiate its lien,” or how it waived its lien by “failing to cooperate” or how we have to pay a plaintiff’s attorney additional fees to “protect our lien.” I have heard how the employer’s actions caused the injury, so they will be joined into the third party case (also not true) or that the lien will be reduced by the employer’s degree of negligence. None of these assertions has any merit. Contrary to popular belief a third-third-third is not standard. If you ever want to have some fun and just talk subro, give me a call. Subrogation is absolute (and cool)!