Curtis E. Garnto sued William G. Pritcherd and Denny Taylor for damages arising out of a December 22, 1998 automobile collision. Georgia Electric Membership Corporation “GEMC”, Garnto’s employer, intervened in the action in order to assert a subrogation claim for Garnto’s workers’ compensation benefits. Garnto settled his action against Pritcherd and Taylor for $175,000. The trial court subsequently held that GEMC was not entitled to a workers’ compensation subrogation lien on the proceeds of the settlement. Claiming that the trial court erred in failing to enforce its lien on the basis of the facts submitted, GEMC appeals. We affirm. GEMC asserts its subrogation lien under authority of OCGA § 34-9-11.1 b, which provides: In the event an employee has a right of action against a third-party for an injury or death for which workers’ compensation is payable by the employer 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 initial prerequisites for GEMC’s subrogation lien were met because the December 22, 1998 collision occurred while Garnto was acting in the course of his employment with GEMC, GEMC paid workers’ compensation benefits to Garnto as a result of his injuries from the collision, and Garnto pursued a cause of action against third-parties arising out of the collision. However, in order for an employer to recover under OCGA § 34-9-11.1 b, the injured employee must have been “fully and completely compensated.” See Canal Ins. Co. v. Liberty Mut. Ins. Co. , 256 Ga. App. 866, 873-874 2 570 SE2d 60 2002. This determination is made by comparing the sum of the workers’ compensation benefits payed by the intervenor and the amount of the employee’s recovery in the third-party action, to all economic and non-economic losses caused by the injury. See City of Warner Robins v. Baker , 255 Ga. App. 601, 604-605 3 565 SE2d 919 2002. For purposes of OCGA § 34-9-11.1 b, a recovery includes the proceeds of a settlement. Intl. Maintenance Corp. v. Inland Paper Bd. &c., Inc. , 256 Ga. App. 752, 756 2 569 SE2d 865 2002. GEMC paid $76,509.75 in benefits1 and Garnto received $175,000 from the settlement with Pritcherd and Taylor. In order for GEMC to recover on its lien, the trial court was required to conclude that the sum of these amounts, $251,509.75, exceeded Garnto’s economic and non-economic losses.
There was no bench trial in this matter, but by mutual agreement of the parties the trial court made its decision based on the briefs and affidavits submitted. Citing Vansant v. State , 264 Ga. 319, 320 1 443 SE2d 474 1994, GEMC contends that our standard of review should be de novo because the evidence is uncontroverted and there are no questions of witness credibility. Nevertheless, the trial court was required to make a finding of fact as to whether Garnto was fully and completely compensated; this was a matter disputed by the parties; and the trial court’s decision in this matter required more than applying the law to a given set of facts. See City of Warner Robins , 255 Ga. App. at 602 1 full and complete compensation a mixed question of law and fact. Vansant, on the other hand, involved a review of the trial court’s ruling on a motion to suppress and is only applicable where the facts are uncontroverted. Vansant , 264 Ga. at 320 1. Accordingly, unless “clearly erroneous,” this Court must defer to the trial court’s determination that Garnto was not completely and fully compensated. See Canal Ins. Co. v. Liberty Mut. Ins. Co. , 256 Ga. App. at 873 2.
