Appellee’s motion to dismiss the appeal for failure of appellant to comply with the Rules of Practice in this Court is denied. In order that we may review the case on its merits, we consider the appeal as a petition for writ of certiorari and allow the same.

At the trial in the District Court the crucial question was who paid or who was obligated to pay the employee’s medical expenses incurred for the treatment of his injuries resulting from the accident on 25 July 1966. The trial judge’s resolution of this question is embodied in his finding and conclusion that: “The medical expenses . . . were expenses paid by Norfolk Southern Railway Company and which Norfolk Southern Railway Company was obligated to pay.”

*553The crucial question on appeal is whether this finding and conclusion is supported by the evidence. The pertinent portion of the insurance policy is as follows:

“All benefits provided under this Article are payable to or on behalf of the employee, provided that benefits based on expenses paid by the employer or other person or organization (or which an employer shall be obligated to pay) may be paid by the Insurer to such employer or other person or organization.”

The employee contends there is no evidence in the record that his employer paid or was obligated to pay his medical expenses. We agree.

The uncontroverted facts clearly establish that the medical expenses were paid from funds belonging to the employee from his attorney’s trust account. We think it immaterial and of no legal significance to this case that the funds used to pay the medical expenses might have come originally from the employer. There is nothing in this record to indicate that the employer was obligated to pay the medical expenses or voluntarily made any payments whatsoever to the employee until compelled to do so by virtue of the judgment in the Superior Court. The fact that G.S. 44-50 created a lien on the funds recovered by the employee from the employer to secure the payment of the medical expenses, likewise is not sufficient to support a finding that the employer paid or was obligated to pay the expenses. All of this is made clear when we consider that the employee might have realized nothing from his suit against the employer, in which case the employer would not have been obligated to pay anything to the employee. We hold the trial judge committed prejudicial error in finding and concluding that the employer paid or was obligated to pay the employee’s medical expenses. For the reasons stated the defendant Keith is entitled to a new trial.

New trial.