The Pennsylvania Commonwealth Court recently held in Protz v WCAB (Derry Township School District) (decided January 16, 2016) that a Claimant’s third party medical malpractice recovery is subject to subrogation by the employer for future medical and wage loss benefits in a workers’ compensation action. This is a great benefit to employers where the Claimant’s workers’ compensation recovery and treatment is extended due to a doctor’s medical malpractice.
In Protz, Claimant sustained a work related injury to her knee which necessitated a total knee replacement. The surgery resulted in an inadvertent transected popliteal artery. Claimant successfully prosecuted a malpractice action against the surgeon. Claimant submitted the doctor’s testimony in which the doctor stated, “with reasonable medical probability, the entirety of her symptom complex at the present time is the direct result of the complication she suffered. All treatment she has required since the complication can specifically be directly related to the complication itself.” The employer sought subrogation as to future wage loss and medical benefits. The Court held that the MCARE Act only barred subrogation for past medical and indemnity benefits, but since the Act was silent as to future, future subrogation was allowed. The Court looked at the costs as a percentage of the entire recovery (47%) and held that the employer only had to pay 47% indemnity and 47% of future medical. Here, the Court gave weight to the fact that but for the malpractice, the Employer’s costs would have been significantly less because the Claimant would have required less medical treatment and been able to return to work. In the future, employers and workers’ compensation insurance carriers should be able to recover a portion of a Claimant’s medical malpractice recovery where the future treatment and wage loss is a direct result of the malpractice which occurred.