Tuesday, December 17, 2002

the Commonwealth Court looked at the issue of whether the Claimant can seek an allocation of settlement proceeds to loss of consortium in workers' compensation subrogation proceedings post Thompson v. WCAB (USF&G) (Pa. 2001). Thompson held that a settlement allocation could be reviewed if it was obviously structured to defeat the employer's subrogation right. In the new case, Martino v. WCAB (PECO Energy), the Commonwealth Court recognized that the lump sum settlement represented consideration of release of both the Claimant's cause(s) of action and her husband's loss of consortium claim. However, there was no allocation because this was not provided for in the high-low settlement agreement under which the sum was paid. The Commonwealth Court upheld the decision of the WCJ that awarded subrogation of the whole settlement under Darr Construction Co. v. WCAB. The decision is based on the premise that the Claimant's interests can and must be protected up front.

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