Employer entitled to full lien where evidence of exempt costs is insufficient

In Virginia, an employee has the burden of proving which costs are not subject to an employer lien, once it is established or uncontested that the employer is entitled to the lien.

Case name: Evans v. Xerox Corp. and Continental Casualty Co., No. 0871-08-4 (Va. Ct. App. 01/13/09, unpublished).

Ruling: In an unpublished decision, the Virginia Court of Appeals upheld an employer's entitlement to the full amount of a lien against a civil damages award from the claimant's malpractice suit.

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What it means: In Virginia, an employee has the burden of proving which costs are not subject to an employer lien, once it is established or uncontested that the employer is entitled to the lien.

Summary: The claimant suffered a cervical spine injury at work and underwent surgery to implant a spinal cord stimulator. She developed an infection at the site of the implant which had to be removed. The employer paid compensation and benefits.

As a result of the second surgery, the claimant developed triplegia and significant spasticity, and became permanently disabled. The employee sued the third parties involved in the botched implant surgery and received a malpractice award.

The employer imposed a lien on the employee's malpractice award. The claimant did not contest the employer's entitlement. Instead, she argued the total cost of her medications should not be included in calculating the lien, only the increase in the cost of her medications. The Court of Appeals held that because the employee conceded the employer was entitled to a lien on her malpractice award, it became the employee's burden to establish the amount of the malpractice award. The court noted that the employer had met its burden of proving it was entitled to some portion of her lien through her concession, and thus the burden shifted to the employee to establish which costs were not related to the intervening botched surgery.

The employee's doctor testified it was impossible to separate which of the claimant's current medications were related to her previous spine injury and which were related to the injury after her second surgery. The doctor ultimately indicated it was not possible to quantify the relationship of the medications to the injury before the botched surgery or post-surgery but added that she believed the employee would have been able to return to work if the surgery had been successful, and that all of the employee's continuing treatment was in some part related to the botched surgery.

March 12, 2009

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