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The Pennsylvania Supreme Court recently announced its opinion in Frazier v. W.C.A.B. (Bayada Nurses, Inc.), — A.3d — (Pa. Sept. 28, 2012).

In this Opinion the Commonwealth Court is reversed in a case involving a work related accident leading to a third party recovery and a claim for subrogation. The Supreme Court holds that section 23 of Act 44, (Act of July 2, 1993, P.L. 190, No. 44) which immunizes the Commonwealth from subrogation claims for a claimant's tort recovery with respect to workers' compensation benefits, also bars an employer or workers' compensation insurer from seeking reimbursement directly against an employee's third-party tort recovery that was obtained from the Commonwealth .

This means that section 23 of Act 44 is an exception to the absolute right of subrogation found in 77 P.S. § 671. Also, the Supreme Court writes that to the extent Fox v. W.C.A.B. (PECO Energy Co.), 969 A.2d 11 (Pa.Cmwlth. 2009) is contrary to Frazier, that Fox is "disapproved".

There is also a strong statement form the Court that all interested parties, including the employer or workers' compensation insurer, should be involved in the third-party settlement discussions .

If you would like a copy of the Opinion please feel free to contact Scott Cooper at Schmidt Kramer at or call 717-888-8888.

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