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Senate of Pennsylvania
Session of 2021 - 2022 Regular Session


Posted: December 17, 2020 01:58 PM
From: Senator Camera Bartolotta
To: All Senate members
Subject: Workers’ Compensation and Third-Party Lawsuits – Whitmoyer Remedy
I will soon re-introduce legislation to clarify language in the Worker’s Compensation Act in light of the Pennsylvania Supreme Court’s decision in Whitmoyer v. WCAB (Mt. Country Meats). This legislation was Senate Bill 922 last session.
The bill is in response to a state Supreme Court decision that determined that future workers’ compensation medical expenses paid by a third party could not be recouped by employers. When an employee’s workplace injury results from an act or omission of a third party, such as a manufacturer of faulty equipment, the employee has the ability to file a civil suit against that third party. In the interim, the employer is still responsible for wage loss benefits and medical expenses under a traditional workers compensation claim. If the employee is successful in the third party suit, the employer is able to recover benefits paid under the premise that the employee should not be compensated twice for the same injury. The responsibility for attorneys’ fees incurred in obtaining the third party recovery are shared by the employer and employee.
If the recovery against the third party exceeds lost wages and medical expenses paid to date, the employer receives a “credit” against future “installments of compensation.” Prior to the Whitmoyer decision, the employer credit was interpreted to include both future wage loss and future medical benefits. The Court interpreted “installments of compensation” to only include wage-loss benefits. The Court reasoned that lost wages are easily included in the term “installments,” because wages are paid in installments. Employers may, therefore, recoup benefits for lost wages from the employee’s award in a lawsuit or settlement. The court, however, concluded that medical expenses arise as treatment is provided and not in “installments.” The Supreme Court, therefore, held that employers could not recoup benefits paid for future medical expenses from the proceeds of a lawsuit or settlement. As a result, an employee could receive a large verdict or settlement in a lawsuit from the third party responsible for the injury, and also continue to require the employer to pay for the employee’s medical costs.

The bill would simply strike the phrase “installments of” to restore the prior interpretation to include both future wage-loss and medical benefits. This is in line with how virtually every other state generally deals with this issue in workers’ compensation.
Please join me in co-sponsoring this legislation to clarify the original intent of the Workers’ Compensation Act.

Introduced as SB319