Can Your Health or Disability Insurer Get Their Money Back Out of Your Workers' Compensation Case?

Greg Boles
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Partner at The Boles Firm | Experience Matters

The Rights Of Health and Disability Insurers To Get Their Money Back

While a workers compensation claim is pending, medical bills may be paid by a health insurer and the claimant may receive wage replacement benefits from a short-term or long term disability insurance policy or pension plan. The policies or plans may require the injured worker to take affirmative steps in the workers’ compensation case to protect the interests of the company paying benefits. The Pennsylvania Workers' Compensation Act gives parties paying benefits the right to get their money back, known as a right of subrogation, in the event that a workers’ compensation judge rules in favor of the claimant. How is this rate of subrogation protected?

What Must an Insurer Do To Protect Their Interests? Not Much...

The Commonwealth Court has established that notice of the existence of a claim by a party having a right of subrogation is sufficient to establish the right, if established of record.  In U.S. Steel Corp. v. WCAB, 308 A.2d 200 (Pa. Cmlwth. 1973), the right of subrogation was held to have been established by the employer's answer to a claim petition in which they sought subrogation on behalf of the Equitable Life Insurance Society of the United States and the claimant's admission of receipt of benefits.  In another case, the right to subrogation was established at hearing by little more than the presence in the record of "statements of payments Pennsylvania Blue Shield made to physicians who treated claimant."  Pennsylvania Manufacturer's Association Insurance Company v. WCAB, 418 A.2d 780 (Pa. Cmwlth. 1980).  "Where claimant, through counsel, establishes that the group health insurer/subrogee has advanced the subrogation claim during the original claim proceedings, the WCJ properly directs that the employer is to reimburse the subrogee (or provider), as opposed to claimant directly."  Evans v. WCAB, 94 A.3d 1091 (Pa. Cmwlth. 2014).

Must An Insurance Company Representative Show Up In Court To Protect Their Rights?

Some defense attorneys claim that a representative of the subrogee must be present at hearing to protect its right of subrogation, apparently to mouth the words, “we assert a lien.”  There is no case ever decided by any court at any level that has required the presence at hearing of a subrogee or a subrogee's representative, for a good reason: such a ruling would make these administrative proceedings exceedingly and unnecessarily complex.  Not only is there no basis for this claim in the language of Section 319, it directly contradicts multiple Commonwealth Court decisions, which hold that minimal information must be submitted into the record for a lien to be established.

For the definitive guide to making your way through the Pennsylvania workers’ compensation system, order a free paper copy of The Wounded Worker: Inside the Pennsylvania Workers’ Comp Maze by calling 877-959-1811 or download a free e-copy by clicking here.