McLeod v. BITCO Insurance Companies, No. A25A1362, __ S.E.2d __ (Ga. Ct. App. Oct. 22, 2025). The court (Rickman, P.J.; Davis, J., concurring; Gobeil, J., concurring in judgment only) reversed the trial court’s order enforcing BITCO’s workers’ compensation lien, concluding that the insurer failed to prove that the Plaintiff was “fully and completely compensated” as required by OCGA § 34-9-11.1(b). Ms.** 3–5.
This case arose after the Plaintiff, who had received $166,371.59 in workers’ compensation benefits, settled his third-party tort action for $325,000. Ms.**1–2. BITCO, the employer’s insurer, intervened to enforce its subrogation lien. The trial court found that the combined settlement and benefits would cover Plaintiff’s “economic and non-economic expenses in this action,” and granted BITCO’s motion. Ms.* 2.
On appeal, the court emphasized that the employer or insurer bears the burden of proving that the injured employee has been “fully and completely compensated” for both economic and non-economic losses before enforcing a lien. Ms.* 3(quotingOCGA § 34-9-11.1(b)). The court reiterated that a lien cannot attach to recovery for noneconomic losses, such as pain and suffering, and the insurer must show that no portion of the lien is taken from noneconomic damages. Ms.** 3–4(citing Best Buy Co. v. McKinney, 334 Ga. App. 42, 44–45 (1), 778 S.E.2d 51 (2015); Donegal Mut. Ins. Group v. Jarrett, 364 Ga. App. 506, 509, 875 S.E.2d 475 (2022)).
The court further noted that a lump-sum settlement generally prevents a court from determining what portion of a recovery compensates economic versus non-economic losses. Ms.* 4. Because the settlement did not allocate damages, and BITCO presented no evidence—such as testimony or documentation—demonstrating how the $325,000 was divided, the court found the insurer failed to carry its burden. Ms.**4–5. Accordingly, the court reversed the trial court’s judgment enforcing BITCO’s lien. Ms.* 6.