As noted on our website, generally, an injured worker cannot sue his or her employer for its negligence in causing a work-related injury. Additionally, unlike in a negligence case, workers’ compensation benefits do not include payment for pain and suffering. Occasionally, however, there is another party (a “third party”) that the injured worker can sue and obtain those “non-economic damages” (like pain and suffering). We see this primarily when the employee is injured in a motor vehicle accident or is the victim of a defective product.
Unfortunately, though, the Pennsylvania Workers’ Compensation Act (Act) is designed so that the injured worker who can file suit against a third party, and can recover those additional damages, actually ends up with none of that extra money. We have discussed the concept of “subrogation” here before – this is what allows the workers’ comp insurance carrier to get paid back from the money an injured worker receives in a third party suit.
Recently, in Whitmoyer v. Workers’ Compensation Appeal Board (Mountain Country Meats), the Commonwealth Court of Pennsylvania addressed whether the workers’ comp insurance company is entitled to a credit for future medical treatment after a successful third party recovery.