                              COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Beales and Retired Judge Clements*
Argued at Richmond, Virginia


CYNTHIA BROOKE EVANS
                                                             MEMORANDUM OPINION * * BY
v.     Record No. 0871-08-4                                  JUDGE RANDOLPH A. BEALES
                                                                 JANUARY 13, 2009
XEROX CORPORATION, INC. AND
 CONTINENTAL CASUALTY COMPANY


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                Robert B. Adams (Gammon & Grange, P.C., on brief), for appellant.

                Joseph C. Veith, III (Trichilo, Bancroft, McGavin, Horvath &
                Judkins, P.C., on brief), for appellees.


       Cynthia Brooke Evans (“claimant”) appeals from a decision of the Workers’

Compensation Commission awarding Xerox Corporation and its insurer (collectively,

“employer”) a lien against a civil damages award from an action against a third party. Claimant

argues that the commission erred in setting the amount of the lien. After reviewing the record

and the argument, we disagree and affirm the commission’s award.

                                          BACKGROUND

       Claimant sustained a cervical spine injury while working for employer in 1998.

Employer agreed that she was entitled to temporary total disability benefits, and the commission




       *
         Judge Clements participated in the hearing and decision of this case prior to the
effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to
Code § 17.1-400(D).
      **
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
approved a memorandum of agreement for payment of compensation and benefits to claimant

within months of the accident.

       For the next several years, claimant received compensation and various medical

treatments, but the pain in her upper body and extremities did not abate. Finally, claimant’s

physician, Dr. Grice, recommended that claimant have surgery to implant a spinal cord

stimulator, which the doctor believed would help control the pain. Employer paid for the

surgery.

       Initially, claimant’s condition improved. Dr. Grice believed that claimant would

eventually, with sufficient motivation, regain the ability to work, although she would still have

limitations on her abilities. However, after about a month, claimant developed an infection at the

sight of the implanted device. In order to clear up the infection, the stimulator had to be

removed.

       On November 12, 2003, during follow-up surgery regarding the stimulator, claimant was

injured such that her spinal cord began swelling, which developed into “triplegia and significant

spasticity.” As a result, her upper body problems worsened, and her ability to use her legs was

permanently affected, such that she became permanently disabled. She now required a wheel

chair to move around. Employer agreed to pay permanent total disability benefits.

       Claimant underwent treatment for the problems associated with these new injuries. By

the time of the hearing before the commission, however, claimant was undergoing essentially the

same course of medical treatments that she received prior to the November 12, 2003 surgery,

except that some former medical options were no longer available to her (such as a spinal cord

stimulator) and her physical therapy now involved her lower body as well as her upper body.

The pain in claimant’s upper body had returned to its pre-November 12, 2003 level. When asked

to explain which of claimant’s current medications were solely related to her previous problems

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and which were related to her injury during the surgery, Dr. Grice said it would “be impossible

to separate” the medications in that manner because, even without the surgery, claimant’s

medications would have changed and possibly increased given both her increasing tolerance for

the medications and the different levels of pain claimant had. Dr. Grice explained that

claimant’s post-surgery pain medication was “[a]t least in part” related to the spinal cord injury,

but she could not quantify that relationship. Several of claimant’s current medications were

related to both her original pain and the additional problems from the November 2003 surgery.

Dr. Grice noted that she could not speculate about claimant’s use of pain medication if the

November 2003 surgery had been successful, as patients often continue to use some medication

after implantation of a spinal cord stimulator.

       Claimant brought a malpractice action against the third parties involved in the November

2003 surgery. In settlement of that suit, she received an award of $1.03 million. Employer was

not involved in the settlement of the case and did not approve the final award.

       Employer filed a request with the commission for a lien on claimant’s malpractice

settlement. The deputy commissioner awarded employer a lien in the amount of $444,574.75.

The commission, although adjusting the amount of the lien, affirmed the deputy’s award.

                                            ANALYSIS

       Claimant acknowledges that employer is entitled to a lien against the settlement she

received from the third-party tortfeasors. However, she contends that the commission erred in

the amount of the lien it awarded to employer, arguing that the commission incorrectly included

the total cost of her medications in calculating the lien when it should have used only the

increase in the cost of her medications after the November 2003 surgery. She essentially argues

that employer should bear the burden of proof for calculating the amount of the lien. Employer

counters that it bore the burden to prove an entitlement to a lien, but then the burden shifted so

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that claimant bore the burden of proving which costs were not related to the intervening tortious

surgery, but instead related solely to the original injury. We find that the commission did not err

in setting the amount of the lien.

               Under the Workers’ Compensation Act, the employer/insurer is
               subrogated to an employee’s rights against a third party
               responsible for the injuries giving rise to the payment of
               compensation. Code § 65.2-309(A). The purpose of the statute is
               to reimburse an employer who is compelled to pay compensation
               as a result of the negligence of a third party and to prevent an
               employee from obtaining a double recovery of funds.

Tomlin v. Vance Int’l, 22 Va. App. 448, 452, 470 S.E.2d 599, 601 (1996). Here, claimant chose

to sue the third-party tortfeasors without involving employer in that process or in the settlement.

Therefore, since claimant concedes employer is entitled to a lien once she independently reached

a settlement with the third parties, it became claimant’s burden to establish the amount of the

malpractice award that was not subject to the lien. See Hawkins v. Commonwealth/Southside

Va. Training Ctr., 255 Va. 261, 269, 497 S.E.2d 839, 842 (1998) (citing Bohle v. Henrico

County Sch. Bd., 246 Va. 30, 35, 431 S.E.2d 36, 39 (1993)).

       Claimant cites City of Newport News v. Blankenship, 10 Va. App. 704, 396 S.E.2d 145

(1990), in support of her position. However, that case did not address the burden of proof in

relation to the amount of an award, but instead discussed the burden for determining if an

employer was entitled to a lien at all. Id. at 708-09, 396 S.E.2d at 147-48. In fact, the amount of

the lien was not an issue in Blankenship because the commission found the employer was not

entitled to a lien, and this Court affirmed that decision. Id.

       The commission here accepted the testimony of Dr. Grice that claimant would have been

able to return to work if the surgery had been successful and that all of claimant’s continuing

treatment was related in at least some part to the tortious surgery. This credibility determination

was within the discretion of the commission. Newport News Shipbuilding & Dry Dock Co. v.


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Lawrence, 38 Va. App. 656, 664, 568 S.E.2d 374, 378 (2002). Claimant does not argue that

Dr. Grice’s testimony was inherently incredible or even that Dr. Grice’s testimony was incorrect.

Therefore, the commission had a sufficient factual basis for its determination that the cost of

claimant’s medications should be included in the amount of the lien. Claimant did not prove that

these amounts should be excluded from the lien.

                                         CONCLUSION

       We find the commission did not err in awarding a lien to employer or in setting the

amount of the lien awarded, and, therefore, we affirm the commission’s decision.

                                                                                          Affirmed.




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