It is more common than rare that an injured employee will have a workers’ compensation and a personal injury claim simultaneously. It is important to be aware that a workers’ compensation claim can impact a liability claim. Let’s briefly focus on how the workers’ compensation claim can effect the liability claim in the area of subrogation.
The provisions of subrogation are governed by O.C.G.A. §34-9-11.1 of the Workers’ Compensation Act. If an employee is injured in the course and scope of his employment and that injury is caused by the negligence of a third party, he may recover both workers’ compensation benefits and tort damages. However, the tort recovery is subject to a subrogation lien for the benefits paid against the employee’s recovery. In general, subrogation applies to cases involving automobile accidents, product liability suits, medical malpractice actions or any other claim in which a third party legally is liable for the injury to an employee and where the employer has paid the employee benefits for that injury.
Requirements To Recover On A Subrogation Lien
In order for an employer/insurer to protect its interest, they may intervene in the suit brought by the employee against the third party. The lien amount is restricted to the amount of the workers’ compensation disability benefits, death benefits and medical expenses paid to the employee. Generally before an employer/insurer can recover on a subrogation lien, the workers’ compensation benefits must have been fully or partially paid, and the injury or death for which compensation is payable is caused under circumstances creating a legal liability against someone other than the employer. Additionally, the injured employee must be 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 employer/insurer carries the burden of proving that the employee has been fully and completely compensated. The trial court must determine if the employee has been fully and completely compensated by workers’ compensation benefits and by a recovery from a third-party tortfeasor.
Subrogation Applicable Statute of Limitation
A subrogation lien must be timely filed and within the applicable statute of limitations. An employee may file a personal injury lawsuit in Georgia within 2 years from the date of injury. During the first year after the injury the employee only can file the cause of action against the tortfeasor. If the employee does not bring the action within the first year, then the employer has a non-exclusive right to file suit in its own name or the name of the employee. An employee must notify the employer of any lawsuit only if the suit is filed more than one year after the date of injury. However, if the employer brings suit, it must provide notice to the employee.
While a subrogation lien must be filed within the applicable statute of limitations, there is no specific time limit on when an employer or insurer can intervene in a lawsuit to enforce its subrogation lien.
If you do have a workers’ compensation claim and personal injury claim simultaneously, contact The Campbell Law Practice, LLC to ensure that you are knowledgeable about your rights, to include, timely filing your claim within the appropriate statute of limitations. The Campbell Law Practice, LLC has resolved numerous workers’ compensation claims for the injured worker. Contact The Campbell Law Practice, LLC today for a free workers’ compensation consultation!