Thompson v. Workers' Compensation Appeal Board

Argued: May 7, 2002 OPINION This case is before us on remand from our Supreme Court. We are now called upon to address an issue which we did not reach during our initial consideration of the case, to wit, whether an employer which has paid workers' compensation benefits has subrogation rights in a third party tort recovery even though the employee and tortfeasor have designated the settlement funds as solely attributable to pain and suffering. The history of this case has been set forth at length by Justice Castille in the opinion of the court, Thompson v. Workers' Comp. Appeal Bd. (USF&G Co. and Craig Welding Equip. Rental), 566 Pa. 420, 420-26, 781 A.2d 1146, 1146-1150 (2001), and will be repeated here only in brief outline. In August of 1988, John L. Thompson sustained serious injuries to his skull, jaw, ribs and teeth when the tip-boom of an Omni 60 aerial platform collapsed. As a result of this accident, employer, Craig Welding & Equipment Rental, and its insurance carrier, USF&G, paid Thompson workers' compensation in the amount of $8,673.68 and medical benefits in the amount of $97,070.95, for a total of $105,744.63. Thompson and his wife, Rose M. Thompson, filed a product liability action in October 1988 against the manufacturers, suppliers and owners of the platform. Between the time of the accident and the filing of suit, employer conducted an inspection and tear-down of the Omni 60, which uncovered problems with bolts designed to connect the tip boom to the platform. Present at the inspection were representatives of USF&G, the manufacturer and Mr. Thompson. After the inspection, William Craig, owner of Craig Welding, took possession of the bolts. Unfortunately, by the time of trial he had inadvertently lost them.