dissenting with separate opinion.
I respectfully dissent from the majority's decision to reverse and remand the trial court's grant of summary judgment in favor of Jarrells.6 By reversing, the majority opines that Travelers is entitled to a statutory lien and/or reimbursement from the judgment in the amount of worker's compensation paid to Jarrells, subject to the requirements of Indiana Code section *92222-3-2-12. As recognized by the majority, our supreme court provided a detailed analysis of Indiana's worker's compensation system in Spangler, Jennings & Dougherty P.C. v. Indiana Ins. Co., 729 N.E.2d 117, 120 (Ind.2000). And while the majority's opinion is concerned about the procedures of the system, it loses sight of the worker's compensation's purpose.
The General Assembly created a comprehensive statutory scheme with provisions, including the possibility of a lien by worker's compensation carriers, to ensure the appropriate recovery by the appropriate parties. Walkup v. Wabash Nat'l Corp., 702 N.E.2d 713, 715 (Ind.1998). As such, the worker's compensation scheme reflects a compromise struck by employers and injured workers. An employer is obligated to provide limited compensation to workers whose injuries and illnesses arise out of and in the course of their employment. Walker v. State of Indiana, Muscatatuck State Development Center, 694 N.E.2d 258, 268 (Ind.1998). It is designed to "shift the economic burden for employment related injuries from the employee to the employer and the consumers of its products." Collins v. Day, 604 N.E.2d 647, 648 (Ind.Ct.App.1992), aff'd on other grounds, 644 N.E.2d 72 (Ind.1994). More specifically, the purpose of the worker's compensation lien is to prevent the injured employee from recovering twice at the expense of the employer. Walkup, 702 N.E.2d at 713. See also Larson & Larson, Larson's Worker's CompEnsation Law § 71.20 (1992) (a lien on a recovery from a third party is designed to put the employer back in a neutral position by repayment of medical costs it incurred, to make the injured employee whole and to place the cost of the injury on the wrongdoer) As a result, double recovery is impossible.
As noted by the majority, the admissibility at trial of worker's compensation payments made on behalf of an injured party is governed by Indiana's collateral source statute, Ind.Code § 34-44-1-1 et seq. Just like the worker's compensation statute, the purpose of the collateral source rule statute is to determine the actual amount of the prevailing party's pecuniary loss and to preclude that party from recovering more than onee from all applicable sources for each item of loss sustained in a personal injury or a wrongful death action. Substantively, the statute envisions that victims may not recover more than once for each item of loss sustained. I.C. § 34-44-1-1(2).
Here, at trial, Jarrells provided the jury with the exact amount of worker's compensation benefits paid out by Travelers and informed the jury of Travelers' lien for that amount. After introducing evidence of this collateral source payment, the trial court specifically gave the following limiting instruction to the jury:
If you find that JERRY JARRELLS is entitled to recover, you shall consider evidence of payment made by some collateral source to compensate JAR-RELLS for damages resulting from the accident in question. In determining the amount of JARRELL's damages, you must consider the following type of collateral source payments:
Payments for worker's compensation. In determining the amount received by JARRELLS from collateral sources, you may consider any amount. JARRELS is required to repay a collateral source and the cost to JARRELLS of collateral benefits received. JARRELLS may not recover more than onee for any item of loss sustained.
{Appellant's App. pp. 77 & 91).
The identical limiting instruction was given in Pendleton v. Aguilar, 827 N.E.2d 614, 621 (Ind.Ct.App.2005), reh'g denied, trans. denied, where Pendleton had re*923ceived worker's compensation benefits after a personal injury. Id. at 618. During the trial, the jury heard evidence of collateral source payments and at the close of the evidence, the jury returned a damage award in favor of Pendleton. Id. at 617. However, upon Aguilar's motion for set-off, the trial court reduced Pendleton's jury verdict by the amount of the worker's compensation lien. Id. at 619. On appeal, we reversed the trial court. Id. at 626. We held that it was improper to further reduce Pendleton's recovery because the jury had been instructed to consider the worker's compensation benefits as a collateral source and not to award double recovery. Id. at 620-21. We stated that
It is well established that on appeal, we will presume the jury followed the law contained within the trial court's instruetion and applied that law to the evidence before it. Thus, we refuse to attempt to interpret the thought process of the jury in arriving at its verdict. Accordingly, we must presume the jury followed the limited instruction on collateral source payments and took Pendleton's worker's compensation benefits into account in arriving at its damage award.
Id. at 621 (internal citations omitted). In reversing the trial court, we reasoned that
By subtracting the collateral source payments again from the jury's verdict, the trial court, in effect, ordered a double set-off. Mindful of the legislature's intent to deny a claimant from recovering more than onee from all applicable sources for each item of loss sustained in a personal injury or a wrongful death action, we find that under the cireum-stances of this case, the trial court, rather than awarding a double windfall to Pendleton, allowed a double eredit or set-off to Aguilar.
Id. (internal citations omitted).
I clearly part ways with the majority's treatment of our Pendleton decision. Whereas the majority attempts to distinguish the case on the basis that "it involves an insurer, who pursuant to its contract of insurance and Indiana's statutory lien, seeks pro rata reimbursement of the worker's compensation payments made on behalf of the injured work[,]" I believe Pendleton to be on point to the situation before us. (Slip op. p. 10). It is immaterial whether a full reimbursement or merely a pro rated reimbursement is sought, either way, a reimbursement would represent a windfall or double recovery which is expressly prohibited under Indiana's collateral source statute. See I.C. § 34-44-1-1.
The jury was instructed on the amount of worker's compensation benefits already awarded to Jarrells and, as we will presume the jury followed the jury instruction, took this amount into account when calculating its damage award. Because the jury was instructed that Jarrells could not recover more than once for any item of loss sustained, it adjusted its damage award downwards, as was done in Pendle-ton.
By enforcing the lien, the majority is in effect imposing a double set-off on Jar-rells. First, the jury by following the jury instruction, already properly considered the worker's compensation benefits in its Jury verdict and reduced its award accordingly. Thus, by again reducing the jury award with the worker's compensation benefits by enforcing the lien, Jarrells is subject to a double set-off, prohibited under Indiana's collateral source statute and Pendleton. |
Furthermore, this dissent is in line with the purpose of both the worker's compensation statute and the collateral source statute. Both statutes focus on preventing a victim from recovering twice for his injuries. See I.C. § 84-44-1-1(2); Walkup, *924702 N.E.2d at 713. They are intended to make the injured party whole while placing the cost on the wrongdoer. Here, the majority fails to make Jarrells whole.
I would affirm the trial court.
. We strongly encourage counsel for both parties to familiarize themselves with the rules regarding designating evidence in summary judgment proceedings. As our review of a trial court's ruling on summary judgment is limited to the evidence designated by the parties to the trial court, it is incumbent upon the parties to designate all materials which they reference in support of their motion or reply for summary judgment. Here, only Travelers submitted a separate Designation, listing all documents relied upon in formulating its argument. Jarrells never submitted a separate Designation but instead, in its Memorandum in Reply, included references to certain exhibits which are not clearly identified in the Appendix. We strongly advise counsel to familiarize themselves with our supreme court's opinion in Filip v. Block, 879 N.E.2d 1076, 1081 (Ind.2008) ("[The entire designation must be in a single place, whether as a separate document or appendix or as a part of a motion or other filing").
Furthermore, it appears as if Jarrells' counsel attempted to designate the trial court's "records of all proceedings in this case from the Complaint through and including Inter-vener's Motion for Summary Judgment and Plaintiff's response there to" by filing a "Judicial Notice" with the trial court. (Appellant's App. p. 86). Again, this is not a proper designation for purposes of summary judgment ' proceedings. See id. Because these documents were not properly designated, they cannot be relied upon by the trial court or the appellate court in its review of the summary judgment proceedings.