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No comp lien on med-mal award

An employer who paid for treatment of an employee’s broken leg cannot collect on a workers’ comp lien on the nearly $1 million medical malpractice award the employee later won from a Roanoke jury.

Michael W. Thompson broke his right leg on the job at Bentech Manufacturing in Roanoke. In 2003, he sought workers’ compensation benefits for treatment of his broken leg. Bentech and Thompson entered into written agreements, approved by the Workers’ Compensation Commission, that authorized benefits for the leg injury.

But Thompson later claimed the orthopedic surgeon who treated him, Dr. Joseph E. Alhadeff, was negligent, leading to a pulmonary embolism and lung damage.

Thompson tried to get workers’ compensation payments to cover treatment of his lung condition. He filed another claim in June 2009, more than six years after his on-the-job fracture, and more than five years after he received his last weekly compensation payment.

Bentech resisted the lung claim, saying it had no relation to the leg fracture.

In a Nov. 23, 2009, opinion, a deputy commissioner said all the prior claims, agreement forms and awards referenced only the leg injury. The full commission agreed with Bentech that Thompson’s appeal from the deputy commissioner’s denial of additional benefits was time-barred under Virginia Code § 65.2-708(A).

When Thompson sued Alhadeff, a jury awarded him $988,500 in damages. Bentech filed a comp lien against the verdict, seeking reimbursement for $22,945.77 it had spent for treatment of Thompson’s leg injury.

Roanoke City Circuit Judge Clifford R. Weckstein said Bentech and its workers’ comp carrier were not entitled to share in Thompson’s tort recovery.

Generally, an employer is subrogated to an employee’s rights against any other party who causes an injury or death for which the employer has to pay workers’ compensation. The employer’s subrogation rights means the employee can’t get a double recovery, Weckstein said in his Oct. 11 opinion denying the employer’s lien.

The history of Thompson’s case showed a clear delineation between the workers’ comp award for the original leg fracture, and the denial of Thompson’s comp claim for medical treatment of his ensuing lung injury.

During the malpractice case, the defendant doctor stipulated that the bills and expenses Thompson claimed were proximately caused by the surgeon’s negligence, and none of those expenses or losses had been paid or covered by the workers’ compensation carrier.

Because Bentech had not been required to pay under the Workers’ Compensation Act for injury or damage caused by negligence of the surgeon, a third party, it had no claim on the malpractice award.

The jury verdict had been confirmed and satisfied in full, Weckstein said. The court ordered release of the funds Thompson’s lawyers had been holding in escrow pending the court’s decision.

The case is Thompson v. Alhadeff (VLW 011-8-192). Martinsville lawyer James R. McGarry represented Thompson and Roanoke lawyer Christopher M. Kite represented Bentech. Neither lawyer could be reached for comment.

VLW 011-8-192

Virginia Lawyers Weekly
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