Austell Healthcare Inc. v. Scott.
| Decision Date | 11 March 2011 |
| Docket Number | No. A10A2346.,A10A2346. |
| Citation | 707 S.E.2d 599,308 Ga.App. 393 |
| Parties | AUSTELL HEALTHCARE, INC. et al.v.SCOTT. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Mary Kathryn Rogers and Christopher Robert Reeves, Atlanta, for Appellants.Timothy John Santelli, and John David Hadden, Turkheimer & Hadden, Atlanta, for Appellee.ANDREWS, Judge.
Austell HealthCare, Inc. and Travelers Indemnity Company of America (collectively “intervenors”) appeal from the trial court's grant of Dan Scott's motion to extinguish their subrogation lien. The trial court held that the intervenors could not prove that Scott had been fully compensated after he settled his lawsuit against third-party tortfeasors for a lump sum. Because the intervenors have come forward with no evidence that the trial court erred in determining that Scott had not been fully compensated, the trial court did not err in extinguishing the lien.
The record shows that Scott was employed by Austell HealthCare when he was injured in an automobile accident during the course and scope of his employment. Travelers Indemnity is Austell HealthCare's workers' compensation insurer.
Scott subsequently sued several parties that he claimed were responsible for the accident. At the time of Scott's suit, Austell and Travelers had a subrogation lien in the amount of $59,030.02 for disability benefits and medical expenses paid to Scott up to that point.
Austell and Travelers filed a motion to intervene in the suit and also requested that they be allowed to conduct discovery. The trial court granted the motion to intervene but denied their request to participate in discovery. The trial court did, however, order that intervenors be provided copies of all discovery materials.
After Scott settled his claim against the tortfeasors for a lump sum of $76,000, he filed a motion to quash the intervenors's lien, contending that because he had not been fully compensated, the lien should be dismissed. Scott pointed out that he had undergone two shoulder surgeries and it was determined that he was permanently partially disabled. He also stated that the disability benefits paid while he was totally disabled were significantly less than his pre-injury salary. As a result, he argued, the $76,000 paid to settle the tort suit did not equal “past and future indemnity losses coupled with past and future medical expenses.”
The intervenors opposed the motion, and the trial court held a hearing on February 1, 2010 1 and issued its order three days later. The court ordered that the intervenors's lien be extinguished and ordered intervenors to pay Scott $1915 in attorney fees. This appeal followed.
1. First, intervenors argue that the trial court erred in granting the motion to quash their lien. The lien was filed under the provisions of OCGA § 34–9–11.1(b), which provides:
(b) In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer's liability under this chapter has been fully or partially paid, then the employer or such employer's insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer's or insurer's recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.
The intervenors claim that the trial court erred in concluding that because there was a lump sum settlement, they could not prove that Scott had been fully compensated.
The employer carries the burden of proof of showing that the employee has been fully compensated, whether the employee has received compensation from the tortfeasor through a jury award or by settling his claim against the tortfeasor. City of Warner Robins v. Baker, 255 Ga.App. 601, 604, 565 S.E.2d 919 (2002). In their response to Scott's motion to quash the lien, the intervenors came forward with no evidence at all from which the trial court could conclude that Scott had been fully compensated. Moreover, the intervenors chose not to participate in the takedown of the hearing and have provided us with no transcript of that proceeding. We must presume that the intervenors were given the chance to be heard on the issue. City of Warner Robins, supra at 602, 565 S.E.2d 919.
Instead, intervenors focus on the language in the trial court's order stating that “the Intervenor cannot prove that Mr. Scott has been fully compensated.” (Emphasis supplied.) The order tracks the following language in City of Warner Robins v. Baker, supra:
When the employee has received a jury award, an appellate court cannot determine from a general verdict form what portion of an award was meant to compensate the employee for economic losses and what portion was meant to cover noneconomic losses. The same is true when the employee negotiates a settlement of his claim against the tortfeasor and the settlement is a lump sum. A reviewing court cannot determine from the settlement documents what portion of the settlement was allocated to economic losses and what portion was meant to compensate for noneconomic losses. The result is that the lien cannot be enforced, because full and complete compensation cannot be shown.
Id. at 604–605, 565 S.E.2d 919. Accord Paschall Truck Lines v. Kirkland, 287 Ga.App. 497, 499, 651 S.E.2d 804 (2007); North Bros. Co. v. Thomas, 236 Ga.App. 839, 841, 513 S.E.2d 251 (1999).
Their argument that the trial court erroneously held that they “cannot” show that Scott was fully compensated is unavailing. “In order to constitute reversible error, both error and harm must be shown.” Kersey v. Williamson, 284 Ga. 660, 663(3), 670 S.E.2d 405 (2008). Although it appears that the trial court mistakenly believed that only after a...
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