please the court pad i'm beaten bender here on behalf of the georgia department of administrative services or d o s as i will refer to them i find it particularly interesting that the district court set the correct standard and its order which we are appealing to the district court found that the question for the court is whether there has been a recovery of past medical expenses from the defendant's five shange now that is correct fee shifting in this case would be appropriate only if shanks counsel recovered this five hundred and ninety eight thousand dollars in past medicals on behalf of d o s from the defendant s but that didn't happen here however the district court held that the plaintiffs did not waive their claim for past medical expenses and held that they in fact recovered these expenses from the defendants and i believe that there's a real disconnect between that standard and the ultimate holding and and it's a limited precedent the statute provides that fee shifting in this context is appropriate only with respect to a recovery by the injured employee in the south wire one dollar of the very few cases interpret in this statute gives us a little bit more clarity and depth and states that fee shifting is permissible you can't be serious there is no recovery by the injured party in this case they did their lawyers did questions and attend the pretrial conference and mediation that's it right that's absolutely incorrect here and they're entitled to the entire two hundred thousand dollars fee for that portion of the medical expenses yes your honor and that's correct for two reasons the st of which is that's the nature of the beast when we intervene into the plaintiff's case our burden is extremely limited our burden at the early stages is to prove if necessary the reasonability recovery without their without their services radically or on or anyone could walk off the street and offer to pay our claim and what happened in this case is we were fortuitous the defendants had a strategic goal they wanted to exclude evidence of the plaintiff's past medical expenses at trial and that's why they wanted to pay us and say guess what now you now we don't believe you're entitled to blackboard these damages and perhaps even blackboards future damage and we payment to xining directly for the amount of the lien and the check and then signing and dorce the check over to georgia satisfaction of their lien instead of the check going directly from the insurance carrier  lawyers be deprived of a part of the attorney's pay if the defendants or the defendants insurance carrier had paid the plaintiffs and both the plaintiff's damage over to ga if that check included the five hundred and ninety eight thousand dollars would that have been a recovery yes it would have your honor but that's not what happened in this case and the other important factor is that the plaintiffs waived their claim for past medical initially were but were waving that claim and it's in the record as to why they did that they believe that was in the best interest of their client too and i'm not privy to all of that reasoning but it was a strategic decision to increase her recovery at trial and being some sort of tripartite joint strategy that was not what was in play here your honor so this was a case of every attorney looking out for the best interests of their specific client and no one else the plaintiffs wanted to maximize  a trial the defendants want to minimize their exposure and trial and we happened to be in a position where we were a bit of a pawn that in order to the benefit of both parties strategies and we did what i did what was best for my client and that was in settling this case with the defendant who paid my client everything that they were asking what if the plaintiff had participated in the settlement negotiations that that your client had with the defendant and as part of that settlement agreement pla payments for some things but but but your client is getting payment in full the five hundred dollars some odd one thousand dollars and that check is coming directly to you does that change the situation if everybody's participating in the settlement agreement honor it may and it would be as you identified very fact specific as to the terms of this hypothetical agreement but we know that's not what's happened here because we settled with the defendant for their for their trial strategy weeks before the defendants in the point it's settled and i would posit that it's a very interesting thought exercise to say all right the defendants pay us and settle with us what happens of plaintiffs don't prevail at trial i'm not saying i think that was going to happen but if they had not prevailed would they still be able to say that they recovered the funds that the defendants paid us i don't think i don't think that would be a rational or logical but we have to judge what happened between us and the defendants at the time it happened well i'm what i'm trying to get at is looking back at the terms of the statute in the event of a recovery from such other person by the injured employee so you've got a situation where your client the defendant the plaintiffs are all participating in the settlement agreement but pursuant to the settlement agreement the plaintiff agrees that your what you have paid for past medical the check goes directly to under that circumstance i would contend that if the plaintiff agreed to that that  we are the party to receive that five hundred ninety eight thousand dollars that would be akin to the waiver that we had here in this case if those with if that was the language and so the only way for the based on your argument the only way for the plaintiff to protect itself in this situation is to insist that check st come to the plaintiff that's correct in the way that this usually plays out is this worker's compensation alina and what happens is the plaintiffs try their case we intervene in it and then after the fact after the point of sbastien for those past medicals that they waived in this case the jury awards them what say we would typically come in after the fact and say we have a lien against your recovery and subject to the made whole doctor and we believe we might be entitled to some of those funds that's how this usually plays out and in that scenario there's absolutely no doubt that the plaintiffs were covered our expenses i would never be here we would never be having this discussion and that's how these workers compensation intervention cases play out ninety percent of the time but this case is not one of those it unfolded very differently and as as i want to circle back as as to the lack of  s had in this case as i mentioned earlier our burden is lesser it's necessarily less or we're not going to drive the car throughout the litigation but what should we do should we be penalized for litigating the case officially should we file more motions request more discovery that's not necessary to support our limited burden of proof we're going to penalize you get a part of the fee i'm sorry your honor most out george isn't penalize it's getting  part of the for the the fee is being apportioned the statute says if there is a recovery then the court can apportion a reasonable fee between the attorney for the injured employee and the attorney for the employer or the insured in proportion to the services rendered and it seems to me that the district court's interpretation of that statute is consistent with the purpose and the intent of the statute and common sense why am i wrong about that well your honor there's no joint recovery here i would contend that plaintiff's attorneys i'm not sure of their ultimate fear range meant but the recovery in this case was substantial i would posit in the thirty two million dollar correction i'm not aware of it but i would posit they've been compensated very adequately and for their work before they take a portion of our fee and i would also posit that the statute doesn't just speak to any recovery or these separate covers that we have in this case here it says that apportioning fees is appropriate if and only if the plaintiffs recover not just their own damages but also the interveners lien damages and that's what simpson v south wire really makes clear is that in order to warrant fees splitting fee shifting or apportionment of fees the plaintiffs can't just recover their own damages which is all they did in this case they only recover damages to which we have no interest in our l and they have to recover our damages as well and if they don't do that then there's no basis to shift fees amongst the attorneys if plaintiff does not recover the lien amount what happens in  typical case how do you recover that would be the end of the road for the workers compensation intervener the ok so if so and then you have said that the plaintiff's attorney waived its claim to pass medical that's correct if that's true then that would be the end of the road why did the defendant settle with they had that strategic goal of limiting the evidence that the plaintiffs could present a trial and that's the motion in the mini they filed one day after settling with us paying us and they asked the district court to prevent the plaintiffs from black boarding or asking for past medicals and future medicals i believe the district court ultimately granted and denied that motion in limine in part and said no past medicals but they are allowed to present evidence of future medical so the whole goal that that was the entire goal of the defendant settling with us but if the plaintiffs have waived their right to pass medical why is there a need for a motion in limine e we likely would have contested that waiver of past medicals is improper and violation of the intervention the order of the intervention order in the district court case required the plaintiffs to present all evidence of their economic damages to the court and also require the point is to not do anything to prejudice or lean we didn't get to it since we settled with the defendants but we believe that the allowing the plaintiffs to waive those damages was in violation of the intervention order and if necessary would  dollars d provides in the event of a recovery by the injured employee from the tortfeasor and that the recovery can be by judgment settlement or otherwise that apportionment of attorney's fees between counsel for the injured employee and or her and the worker's comp carrier is appropriate in this event in this case there was a recovery of missings past medical expenses as the court question while opposing counsel was up here there really is no difference between what happened in this case where money changed hands once instead of money changing hands twice there was a recovery regardless the statute doesn't contemplate it says in the event of a recovery from such other person by the injured employee does not contemplate that it has to be directly tied to the actions of your client your honor it does the record below and the transcript from the pretrial conference indicates that the plaintiff missing never waived her right for past medical expenses what what we did below was say ok the defendants have admitted injuries which took approximately two years of work to accomplish and that for specific reasons we want to give up our right to seek the fair market value of those past medical expenses judge land below made clear that missing couldn't waived her right for past medical expense instead based on several unique factors that are facts that occurred in this case one of the defendants had admitted liability in causation from a sayings injuries to the plaintiffs decided not to ask for the fair market value of those expenses and three that the plaintiffs agreed that they would not contest that missing had been fully and completely compensated as contemplated by the statute that the parties this streamline process that was facilitated by plaintiff's counsel and endorsed by the district court allowed for this recovery in a way that was fair and economical for ever for every party the court noted that this would help de clutter the case and that if it were if the if miss a lien related claim for her past medical expenses could not get settled before recovery otherwise means however simpson versus south wire has interpreted thirty four dash nine dash eleven point one d and as explained that one construing that statute it's important to st look at the intent and purpose of that statute the intended purpose of this statute is to protect the injured employee we want to make sure that injured employees are fully and completely compensated and that once the workers comp carrier has a group has proven that that employee is full completely compensated that's not a burden the d o s had to meet here when plaintiffs agreed facilitated the streamlined approach but that this recovery can occur when all the parties get together and agree but i would i would submit that this doesn't need to be certified to the georgia supreme court this is a very unusual factual situation and as your honor stated or questioned during opposing counsel's argument the intent purpose and common sense meaning of the statute does provide that missing did recover her past medical expenses at just as judge branch said if the plaintiff had actually waived this claim there would have been a recovery there's this idea it's sinopoli it's still yes his position that it independently settled these claims all the parties of the pretrial conference discussed how this facilitated the streamlined approach would work and  the case and because it was the fairest way for all of the parties where the defendants had already admitted liability and causation to deal with this related claim you're talking about streamlining the case and so that necessarily means you are focusing on what is going to happen at the trial there's nothing though that in that efficiency and streamlining that speaks to why your client couldn't have settled separately with the defendant for the past medical that certainly would have streamlined the case to there's not anything magic to it has to be taken out of the case and we're going to let the georgia department of administrative services  handle that i mean your client could have settled for past medical would have and that would have streamlined the case to correct it would have however  the more efficient option or the better option in this case because missing wasn't seeking the fair market value of her past medical expenses that it was to have the defendants directly pay the entire subrogation lien to that they would only settle that related claim with missing so the way it would work is you settle with them for the amount of georgia lien and then georgia can object because they're going to get all their money right now that's the only owner ok so if you settle for anything less than a lien they're going to object right ok that's assuming the missing in this case did give up her ri to contest that she was fully and completely compensate i understand ok negotiated these claims with the defendants this was not the case this was not a backroom deal this was out in front of the judge and as well as plaintiffs counsel at the pretrial conference moreover it's difficult to see d now what's the answer to that your honor the statute contemplates that when there is a recovery as there was in this case that fees will be apportioned between plaintiff's counsel and counsel for d us unlike in summers versus state compensation surance fund where plaintiff's counsel tried to completely eliminate the worker's compensation carrier city judge land in this case a portion twenty five percent of the entire judgment to d received fifty thousand dollars for filing a form motion to intervene attending to depositions by phone attending the pretrial conference and attending mediation deal your argument i guess is that there is a recovery between plaintiff's counsel and counsel for worker's comp as the us is counsel stated when he was up here they sensually they virtually do no work or maybe your honor judge wilson had stated that that's contemplated by the statute the purpose of the statute is to make sure and simpson versus south wire company discusses this is to make sure that an injured employee doesn't bear the legal expenses of a worker's compensation carrier that's now the statute inten s and in this case the judge land appropriately apportioned attorneys fees based on in proportion to services rendered that's also something that's in the statute attorney's fees are apportioned in proportion to services rendered clear though the georgia department of ministry of services has not said yes we agree this should have been apportioned but we're disputing the apportionment amount they're saying shouldn't have been apportioned at all so we're not really talking about the fairness of the apportionment they're saying shouldn't have happened but but you had said earlier that judge land correctly followed the spirit of the statute so i want to go back to that sentence for a nd let's talk about the language of the statute do you win if we look at the language of the statute looking at the language of the statute in the event of a recovery from such from an injured employee by a to let me rephrase in the event ever covered by an injured employee from the tortfeasor by settlement judgement or otherwise there will be an apportionment of attorney's fees in this case the claim that was settled was missing le related claim it was the claim for her past medical expenses d o s concedes that it doesn't have a claim directly against the defendants it has an illusory subrogation lien until an employee is either proven or in this case agrees that they've been they will be fully and completely compensated and will not contest that lien so looking at the plain language of the statute the common sense language is that there was a recovery the recovery was missing spasso medical expenses and the persons who paid from a sayings past medical expenses at the statute says in the event of recovery by the injured employee and so here we have a situation where your client did not participate in the settlement negotiations and did say we're not going to be seeking past medical and turned over the settlement to the georgia department of administrative services so how do you win under the language of the statute based on those facts your honor the pla missing did participate in the settlement this streamlined approach that was produced this settlement missing had to agree that one she would not seek the fair market value of her medical expenses and t o that she would not contest that she was fully and completely compensated otherwise d o s could not have recovered it's entirely to be clear though she's not a signatory to the settlement agreement between d going to be used that the plaintiffs would not come back we agreed on the record that the plaintiffs would not come back and contest the missing had been fully and completely compensated otherwise this settlement could not have happened the purpose of the statute  make sure that in injured employees are fully and completely compensated if we are to agree with the oh yes that a worker's comp carrier can go independently negotiate a claim that actually belongs to an injured employee that completely contravenes the purpose of the statute and will give workers compensation carriers motivation to settle past medical expenses out from under the injured employees that's not what the statute intends so that so that  discussion and this is what judge land found that it by agreeing to the streamlined approach that helped every party unable d o s to not have to satisfy its part in the trial or sit through a trial that the plaintiffs would not contest that she was feeling completely compensated but that this streamlined approach could be used to the benefit of all parties at no time was there discussion that this would know if i plan if councils ability to have attorney's fees apportioned again the statute provides the purpose of the statute again it's explained in simpson versus south wire company is to make sure that employees feeling completely compensated and isn't bearing the expense of a worker's compensation carrier and in this case if the court were to reverse the district court it would be up ending the statute it would just incentivize any plaintiff's attorney from ever agreeing to this kind of streamlined approach again and would incentivize workers compensation carriers to settle past medical expenses claims out from at the pretrial conference the court and it came up that perhaps dio i should be negotiating with the defendants that's unusual but we agreed to negotiate with them and they made us a favorable settlement offer the made a hole doctor and is a bit of a red herring here participation wasn't necessary in the settlement because the made whole doctrine didn't apply the made whole doctrine states that before we can recover on arlene before we can take money from the plaintiff recovery we have to establish that the point is been made whole didn't happen here because we settled our case and did away with arlene damages before the point if ever had a recovery so that the made whole doctrine has no impact on this  as for the waiver issue i do just want to invite the court to inspect the pretrial order in the pretrial conference transcript breach our orders docket eighty nine they're just clear waivers we are we are not putting up employed that means that you have to have this agreement and the check passed to go to her and then she pays the two you are doing ga and if that happens everything sticks if that happens it's business as usual because the plaintiff has recovered the worker's compensation interveners damages on behalf of king so how is this different because everything happens in sequence where they agree not to claim anymore therefore there's a settlement they and therefore the check can be made right to you and that's the end of it so it's just a matter of how the check goes the statutory interpretation should really turn on how the check goes that's is there anything more substantive than just how the check goes that's not what happened your honor the d o d s and the defendant settled before the plaintiffs and the defendant settled their independent claims we were covered before the recovery it wasn't a streamlined what does the nd you are you would not have been rate covered it would not have been recovering if they hadn't agreed that they wouldn't press those claims anymore that who wouldn't claims that the injured party would not press more claims for past damages otherwise you would have gotten a check i don't but we've the injured parties would have had it claims directly against not aware of any agreement between the plaintiffs and the defendants at that time limiting the claims that the point of could have presented against the defendants against that or if you so the claim went directly to the state of georgia for no reason the defendants elected to pay d o s this money for the defendant's own strategic reasons for trial advantage for their own clients it was an unorthodox structure it's one that in order to the benefit of my client perhaps we received more money than we usually do i would like to know who to petition for in the cases where i do more work and receive less money than i feel i'm entitled to those are those are the breaks sometimes but i think we need to come back to the clear honor we are we are not taking issue with the split the seven thousand five hundred and twenty five percent split from judge lender simply taking issue with the apportionment at all that's that's also i don't i don't quibble with the way that he carved up the pie i just quibble with his is in recess until nine o'clock tomorrow morning