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IN THE COMMONWEALTH COURT OF PENNSYLVANIA FRED L. GREGORY, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (CUMMINS DIESEL ENGINES, INC.), Respondent PER CURIAM : : : : : : : : :

NO. 3197 C.D. 1997

ORDER AND NOW, this 18th day of November, 1998, it is ordered that the above-captioned opinion filed on September 15, 1998 shall be designated OPINION, rather than MEMORANDUM OPINION, and it shall be reported.

Judge Flaherty did not participate in this decision.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA FRED L. GREGORY, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (CUMMINS DIESEL ENGINES, INC.), Respondent BEFORE: : : : : : : : : :

NO. 3197 C.D. 1997 SUBMITTED: July 24, 1998

HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JAMES R. KELLEY, Judge HONORABLE JESS S. JIULIANTE, Senior Judge FILED: September 15, 1998

OPINION BY SENIOR JUDGE JIULIANTE

Claimant Fred L. Gregory petitions for review of the October 23, 1997 order of the Workers' Compensation Appeal Board (1) amending the Workers' Compensation Judge's (WCJ's) decision to provide that Employer Cummings Diesel Engines, Inc.'s insurance carrier, Atlantic Mutual Insurance Company, (insurance carrier) is entitled to recoup $27,441.53 in full satisfaction of its subrogation lien;1 and (2) remanding the case for the insurance carrier to submit the correct subrogation lien amounts to the WCJ for his approval.2 We affirm.

The Board noted that "[t]his net amount reflects the credit that Claimant is entitled to for the $5,000.00 payment made to Faith Gregory for her loss of consortium claim." (Board's Decision at 7.) 2 The Board further noted that, "[i]n the event [the insurance carrier] does not submit this information within 30 days to the WCJ, the $71,020.90 figure shall be affirmed by this Board upon the Claimant's Petition for Rehearing to us." (Id.)

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The background of this case is as follows.

On March 14, 1991,

Claimant was injured in the course of employment with Employer while removing a tire from a forklift. He received benefits pursuant to an April 5, 1991 Notice of Compensation Payable. On May 6, 1993, the parties executed a Supplemental Agreement thereby reducing Claimant's benefits due to his return to work and acknowledging that his partial disability benefits were not to exceed 500 weeks. The Board subsequently commuted those partial disability benefits to the amount of $45,000.00. On October 15, 1992, Claimant and his then wife Faith filed a civil action against Komatsu Forklift Manufacturing Company and several other defendants in the Court of Common Pleas of Allegheny County. This civil action included wife Faith's claim for loss of consortium. On June 1, 1994, Claimant and his wife, who by then were separated, executed a Settlement Agreement with the defendants in the civil action in the amount of $62,500.00. At that time, the wife received $5,000.00 for her loss of consortium claim, Claimant's attorneys received $5,058.00 in costs and $25,000.00 in attorney's fees. Thus, Claimant received a net settlement check in the amount of $27,441.53. On April 24, 1995, the insurance carrier filed a review petition pursuant to Section 319 of the Workers' Compensation Act,3 alleging that it was entitled to subrogation against the proceeds Claimant received as a result of the third-party lawsuit. Claimant filed a May 25, 1995 answer denying the allegations of the petition. The WCJ found that the insurance carrier had a total lien of $71,020.90 and was entitled to subrogation of the entire net amount Claimant
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Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

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