Once burden to pursue subrogation under §319 is satisfied, subrogation is automatic and Judge’s decision to suspend benefits for failure to disclose amount of recovery was proper

The Commonwealth Court had previously issued an unpublished decision in this same case holding that the Workers’ Compensation Judge did not err in suspending partial benefits for a closed period until the claimant disclosed the amount of moneys recovered in a third-party tort action. The claimant then filed review, modification and reinstatement petitions, which were dismissed by the Judge on the basis that the claimant had failed to disclose the monetary amount received in a third-party settlement. The Judge concluded that the prior Workers’ Compensation Judge’s decision placed the burden on the claimant to establish the amount of the third-party recovery, that the claimant could not shift this burden onto the employer by filing the petitions, and that the claimant failed to carry the burden of accounting for the moneys. The claimant appealed, and the Appeal Board affirmed. The Commonwealth Court affirmed the decisions below and dismissed the claimant’s appeal. According to the court, the employer satisfied its burden that it was entitled to subrogation under §319 of the Act, thereby triggering the automatic subrogation provision. The Act does not make subrogation contingent upon an employer demonstrating the amount of recovery. The court held that the Judge correctly placed the burden on the claimant to establish the amount.

_{Case Law Alerts, 3rd Quarter, July 2015}

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