2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 1 - General Provisions
§ 34-9-11.1. Employee's or Survivor's Right of Action Against Person Other Than Employer; Subrogation Lien of Employer; Rights of Employer or Insurer Upon Failure of Employee to Bring Action; Attorney Fees; Retroactive Application

1. When the injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability against some person other than the employer, the injured employee or those to whom such employee's right of action survives at law may pursue the remedy by proper action in a court of competent jurisdiction against such other persons, except as precluded by Code Section 34-9-11 or otherwise.
2. In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer's liability under this chapter has been fully or partially paid, then the employer or such employer's insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer's or insurer's recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been 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.
3. Such action against such other person by the employee must be instituted in all cases within the applicable statute of limitations. If such action is not brought by the employee within one year after the date of injury, then the employer or such employer's insurer may but is not required to assert the employee's cause of action in tort, either in its own name or in the name of the employee. The employer or its insurer shall immediately notify the employee of its assertion of such cause of action, and the employee shall have a right to intervene. If after one year from the date of injury the employee asserts his or her cause of action in tort, then the employee shall immediately notify the employer or its insurer of his or her assertion of such cause of action, and the employer or its insurer shall have a right to intervene. In any case, if the employer or insurer recovers more than the extent of its lien, then the amount in excess thereof shall be paid over to the employee. For purposes of this subsection only, "employee" shall include not only the injured employee but also those persons in whom the cause of action in tort rests or survives for injuries to such employee.
4. In the event of a recovery from such other person by the injured employee or those to whom such employee's right of action survives by judgment, settlement, or otherwise, the attorney representing such injured employee or those to whom such employee's right of action survives shall be entitled to a reasonable fee for services; provided, however, that if the employer or insurer has engaged another attorney to represent the employer or insurer in effecting recovery against such other person, then a court of competent jurisdiction shall upon application apportion the reasonable fee between the attorney for the injured employee and the attorney for the employer or insurer in proportion to services rendered. The provisions of Code Sections 15-19-14 and 15-19-15 shall apply.
5. It is the express intent of the General Assembly that the provisions of subsection (c) of this Code section be applied not only prospectively but also retroactively to injuries occurring on or after July 1, 1992.

(Code 1981, §34-9-11.1, enacted by Ga. L. 1992, p. 1942, § 2; Ga. L. 1995, p. 642, § 2.)

- Ga. L. 1995, p. 642, § 13, not codified by the General Assembly, provides for severability.

- For annual survey article discussing developments in insurance law, see 51 Mercer L. Rev. 313 (1999). For annual survey article discussing workers' compensation law, see 52 Mercer L. Rev. 505 (2000). For article, "Insurance," see 53 Mercer L. Rev. 281 (2001). For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001). For article, "Subrogation Under Georgia's Workers' Compensation Act," see 5 Ga. St. B. J. 18 (1999). For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For survey article on workers' compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For survey article on workers' compensation law, see 60 Mercer L. Rev. 433 (2008). For annual survey on workers' compensation, see 61 Mercer L. Rev. 399 (2009). For annual survey of law on workers' compensation, see 62 Mercer L. Rev. 383 (2010). For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992). For comment, "The Employer's/Insurance Carrier's Right to Subrogation Under the Georgia Workers' Compensation Act (O.C.G.A. Section 34-9-11.1): How Long Will It Last?," see 46 Mercer L. Rev. 1575 (1995).

Retroactive application of the 1995 amendment permitting an employee to commence a third-party action within the applicable statute of limitations did not impair vested rights of the employer. Moore v. Savannah Cocoa, Inc., 217 Ga. App. 869, 459 S.E.2d 580 (1995); Conner v. Greene, 219 Ga. App. 860, 467 S.E.2d 199 (1996).

When an employee who was injured in December, 1992, commenced a third-party action within two years, the period permitted by the applicable statute of limitations, the trial court's order of dismissal predicated on the former version of O.C.G.A. § 34-9-11 (c) was erroneous. Vaughn v. Vulcan Materials Co., 266 Ga. 163, 465 S.E.2d 661 (1996).

Employee's failure to file suit against a third party within one year of the date of injury, in accordance with the former section, did not give the employer a vested right in the assignment of the action; thus, the employee's filing of an action within the applicable statute of limitations in accordance with the revised section did not impair vested rights of the employer and was timely. Wilson v. Christian, 220 Ga. App. 221, 469 S.E.2d 362 (1996).

Legislature may revive a claim which would have been barred by a previous limitation period by enacting a new statute of limitation without violating our constitutional prohibition against retroactive laws. Cleveland v. Snowdrop Properties, 221 Ga. App. 448, 471 S.E.2d 542 (1996).

- O.C.G.A. § 34-9-11.1 provided a substantive change in the law and, thus, would not be applied retroactively to give an insurer the right of subrogation. Maryland Cas. Ins. Co. v. Glomski, 210 Ga. App. 759, 437 S.E.2d 616 (1993); Dutton v. Georgia Associated Gen. Contractor Self-Insurers Trust Fund, 215 Ga. App. 607, 451 S.E.2d 504 (1994).

Legislative decision in O.C.G.A. § 34-9-11.1(e) not to extend the retroactive application of the amended section to claims arising before the effective date of the section was an expression of intention that the former section was not applicable to injuries occurring prior to July 1, 1992; thus, an injured worker's action for damages against a third party brought within the two-year statute of limitations applicable under the section as amended was timely, even though the injury occurred prior to the effective date of the amendment. Draughn v. Delta Airlines, 218 Ga. App. 540, 462 S.E.2d 445 (1995).

Prior to the 1995 amendment, O.C.G.A. § 34-9-11.1 clearly limited recovery to disability benefits and medical expenses, and because an insurer had not shown that it paid either disability benefits or medical expenses, but only death benefits, it was not entitled to subrogation. Bankhead v. Lucas Aerospace Ltd., 878 F. Supp. 221 (N.D. Ga. 1994), aff'd, 120 F.3d 1390 (11th Cir. 1997).

- Prior to the 1995 amendment, O.C.G.A. § 34-9-11.1 did not allow an employer's insurer to recover death benefits and/or burial expenses paid pursuant to O.C.G.A. § 34-9-265 from the proceeds of the survivor's litigation under § 34-9-11.1 against a third party tortfeasor. Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 471 S.E.2d 504 (1996).

Language of O.C.G.A. § 34-9-11.1(e) could not be more imperative; the provisions of O.C.G.A. § 34-9-11.1(c) are to be applied retroactively. Dowdy v. Earthwise Restaurant Mgt., Inc., 221 Ga. App. 220, 471 S.E.2d 42 (1996).

- O.C.G.A. § 34-9-11.1 does not grant any new substantive rights to injured employees or change an employer's immunity from tort liability. Warden v. Hoar Constr. Co., 269 Ga. 715, 507 S.E.2d 428 (1998).

- O.C.G.A. § 34-9-11.1 does not allow reassignment of an employee's action against a third party from the employer back to the employee in order to preserve the employee's right to maintain the action after that right was assigned to the employer because of the employee's failure to timely file a claim. Bennett v. Williams Elec. Constr. Co., 215 Ga. App. 423, 450 S.E.2d 873 (1994).

- Even though the employer of an injured plaintiff in a negligence action was entitled to protect and enforce its claim to a subrogation lien, when the employer was not a party to the action, it lacked standing to appeal the dismissal of the action. Astin v. Callahan, 222 Ga. App. 226, 474 S.E.2d 81 (1996).

- While the trial court abused the court's discretion in failing to bifurcate the trial, which resulted in comments and instructions throughout the trial that referred to the collateral source of workers' compensation benefits, the error was harmless because the jury concluded that the driver and the driver's employer were not liable and thus, the jury never reached the issue of damages, rendering any error in the court's references to and instructions regarding the workers' compensation lien harmless. Endsley v. Geotechnical & Environmental Consultants, Inc., 339 Ga. App. 663, 794 S.E.2d 174 (2016).

- Both O.C.G.A. §§ 9-11-24 and34-9-11.1, the general intervention statute, granted a workers' compensation insurer the right to intervene in a personal injury case against third parties and their insurers brought by a claimant to whom the insurer paid benefits. Department of Admin. Servs. v. Brown, 219 Ga. App. 27, 464 S.E.2d 7 (1995).

- If intervention appears before final judgment, if the rights of the intervening parties have not been protected, and if the denial of intervention would dispose of the intervening parties' cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion. Payne v. Dundee Mills, Inc., 235 Ga. App. 514, 510 S.E.2d 67 (1998).

Because it was not clear whether the defendant "immediately" notified the plaintiff of its subrogation complaint, but the plaintiff moved to intervene before any judgment in the subrogation action and before the defendant dismissed its complaint against contractors, when the plaintiff could not have moved to intervene before the expiration of the statute of limitations on the tort claim because the defendant did not inform the plaintiff about the subrogation action until after it was filed on the last day before expiration, and when there was no indication that granting the motion to intervene would prejudice the defendant in any way or that the defendant had taken any steps to protect the plaintiff's interest before dismissing its suit against the contractors, the trial court abused its discretion in denying the motion to intervene. Payne v. Dundee Mills, Inc., 235 Ga. App. 514, 510 S.E.2d 67 (1998).

Worker's employer and employer's workers' compensation insurer were entitled to intervene in the plaintiff worker's tort action arising from a workplace injury (the right to intervene arose because the employer and its insurer could assert a subrogation lien pursuant to O.C.G.A. § 34-9-11.1(b)); the right to recover was not at issue and was properly addressed at trial upon a showing that the plaintiffs had fully and completely recovered. Lara v. Tri-State Drilling, 504 F. Supp. 2d 1323 (N.D. Ga. 2007).

- Employer was also entitled to intervene in a workers' compensation action pursuant to O.C.G.A. § 9-11-24(a)(2) because the employer claimed an interest in the property or transaction that was the subject of the suit because the employer's subrogation rights were not protected by the existing parties to the employee's suit, and because the trial court's denial of the employer's motion to intervene disposed of the only legal remedy for that claim. Kroger v. Taylor, 320 Ga. App. 298, 739 S.E.2d 767 (2013).

- Although intervenors, a worker's employer and the employer's insurer had interests which conflicted with the worker's interests and took action as intervenors to support a summary judgment motion by the defendant owner against the worker, thus, the trial court erred in dismissing the intervenors from the worker's personal injury suit against the owner and two others who were allegedly responsible for the worker's injuries and thereby leaving intervenors to file a separate suit to enforce their subrogation lien, as O.C.G.A. § 34-9-11.1(b) gave the employer and its insurer an absolute right to intervene to enforce their subrogation lien to recover the costs of medical and disability benefits that they paid the worker as workers' compensation. Int'l Maint. Corp. v. Inland Paper Bd. & Packaging, Inc., 256 Ga. App. 752, 569 S.E.2d 865 (2002).

- O.C.G.A. § 34-9-11.1(b) does not permit consideration of any evidence of the employee's contributory/comparative negligence or assumption of the risk in the court's calculation of whether the employee has been fully and completely compensated for injuries. Homebuilders Ass'n v. Morris, 238 Ga. App. 194, 518 S.E.2d 194 (1999).

O.C.G.A. § 34-9-11.1(b) instructed courts in determining whether an employee has been fully and completely compensated to consider both the workers' compensation benefits the employee received and the amount of the employee's recovery against the third party. Hartford Ins. Co. v. Fed. Express Corp., 253 Ga. App. 520, 559 S.E.2d 530 (2002).

- Insurance company, which provided workers' compensation insurance to the insured, had no right to pursue the company's owned independent action against the driver when the insured was already pursuing an action as nothing in O.C.G.A. § 34-9-11.1 permitted a separate suit by the insurer when the insured's suit was pending. Schecter v. Auto-Owners Ins. Co., 335 Ga. App. 30, 779 S.E.2d 69 (2015), cert. denied, 2016 Ga. LEXIS 297 (Ga. 2016).

- Given the injured employee's economic damages, the indications of pain and suffering, the possibility of future medical expenses, and the amount of net proceeds available to the employee, the record demonstrated that the trial court did not abuse its discretion in concluding that the city, which was seeking to enforce a subrogation lien, failed to carry its burden of showing that the employee had been fully and completely compensated in a personal injury suit against the third party that injured the employee in an automobile accident that occurred in the scope of the employee's employment. City of Warner Robins v. Baker, 255 Ga. App. 601, 565 S.E.2d 919 (2002).

When an employer failed to carry its burden of showing that the combination of workers' compensation benefits and a personal injury claim settlement fully and completely compensated an injured person for injuries sustained in an auto accident, a trial court's ruling that the employer was not entitled to recover on its subrogation lien for the workers' compensation benefits paid was affirmed. Ga. Elec. Mbrshp. Corp. v. Garnto, 266 Ga. App. 452, 597 S.E.2d 527 (2004).

Pretermitting whether the trial court correctly determined that no benefits had been paid under Georgia's Workers' Compensation Act, and thus the employer had no right of subrogation to the tort claim settlement proceeds, the trial court's order granting partial summary judgment to the employee extinguishing the employer's subrogation lien had to be affirmed, as the employer failed to carry its burden of showing that its injured employee was fully and completely compensated within the meaning of O.C.G.A. § 34-9-11.1(b). Paschall Truck Lines, Inc. v. Kirkland, 287 Ga. App. 497, 651 S.E.2d 804 (2007).

Trial court did not err in denying the employer's motion to enforce the employer's subrogation lien against a settlement reached between the employee and certain third-party tortfeasors because the employer was unsuccessful in proving that the employee had been fully and completely compensated for their economic and noneconomic losses; thus, the trial court properly denied the employer's request to enforce the employer's lien against the settlement proceeds recovered by the employee. Best Buy Co., Inc. v. McKinney, 334 Ga. App. 42, 778 S.E.2d 51 (2015).

- When an employee settled the employee's personal injury claim against a tortfeasor without filing suit, and the tortfeasor had no knowledge of the workers' compensation claim, the employer had no right of action against the tortfeasor, but the loss of the right to bring a subrogation action did not extinguish the employer's lien on the recovery. Rowland v. Department of Admin. Servs., 219 Ga. App. 899, 466 S.E.2d 923 (1996).

Because the employee settled a lawsuit and released third-party tortfeasors prior to receiving workers' compensation payments, the settlement and release extinguished subrogation rights asserted by the employer and its insurer. It made no difference that the tortfeasors settled with the employee after receiving notice of the pending workers' compensation claim. Georgia Star Plumbing, Inc. v. Bowen, 225 Ga. App. 379, 484 S.E.2d 26 (1997).

Settlement and release agreement between the manufacturer and the employee demonstrated the employee waived the employee's right to insist that the employer prove that the employee had been fully and completely compensated. Ga. Elec. Mbrshp. Corp. v. Hi-Ranger, Inc., 275 Ga. 197, 563 S.E.2d 841 (2002).

After an employee, who was injured in a work related auto accident, settled a personal injury claim against the tortfeasors for a lump sum, the employer's and the workers' compensation insurer's subrogation lien was to be dismissed because they came forward with no evidence that the trial court erred in determining that the employee had not been fully compensated. Austell HealthCare, Inc. v. Scott, 308 Ga. App. 393, 707 S.E.2d 599 (2011).

Grant of the motion to enforce a subrogation lien was affirmed because the workers' compensation insurer was intentionally excluded from the settlement negotiations, was not a party to the settlement agreement, and had never consented to the agreement. Thus, the insurer was not bound by the settlement agreement's statement that the injured employee and the company "acknowledge" that the employee had not been fully compensated for the employee's injuries. SunTrust Bank v. Travelers Prop. Cas. Co. of Am., 321 Ga. App. 538, 740 S.E.2d 824 (2013).

- When the plaintiffs, a worker and the worker's spouse, sued the defendants, the owner, designer, and builder of a staircase and platform which fell on the worker, for personal injuries, and intervenors, the worker's employer and its insurer, intervened to enforce a subrogation lien, the trial court did not err in giving its approval under O.C.G.A. § 9-11-21 to the plaintiffs' dismissal of the builder and the designer over intervenors' objections after the plaintiffs settled with the builder and the designer because, although O.C.G.A. § 34-9-11.1(b) gave the employer and the insurer the right to intervene to enforce a subrogation lien, it did not allow them to take away the plaintiffs' power to direct their own lawsuit against the defendants or to settle with one or more of the defendants. Int'l Maint. Corp. v. Inland Paper Bd. & Packaging, Inc., 256 Ga. App. 752, 569 S.E.2d 865 (2002).

- Trial court had authority to reduce an employee's personal injury award to cover the subrogation lien of the employer. Powell v. Daniels Constr. & Demolition, Inc., 232 Ga. App. 422, 501 S.E.2d 578 (1998).

- Because the plaintiff was awarded $50,000, $25,000 for medical expenses and $25,000 for pain and suffering, in an action arising from a motor vehicle accident and because there was nothing in the record which indicated that the plaintiff had any outstanding medical or other claims or obligations, the plaintiff's employer was entitled to enforce its subrogation lien against the $25,000 awarded for medical expenses, but not against the $25,000 awarded for pain and suffering. North Bros. Co. v. Thomas, 236 Ga. App. 839, 513 S.E.2d 251 (1999).

Insurer was entitled to a subrogation lien against medical expenses recovered by an employee in a suit against a third-party tortfeasor after the evidence showed that the workers' compensation medical expense benefits paid to the employee along with the medical expenses the employee recovered in the suit were more than sufficient to fully and completely compensate for the medical expenses incurred as a result of the injury. Hammond v. Lee, 244 Ga. App. 865, 536 S.E.2d 231 (2000).

- O.C.G.A. § 34-9-11.1 did not authorize a workers' compensation insurer to assert a subrogation right against an injured employee's uninsured motorist carrier. Stewart v. Auto-Owners Ins. Co., 230 Ga. App. 265, 495 S.E.2d 882 (1998).

Insurer was not entitled to a subrogation lien pursuant to O.C.G.A. § 34-9-11.1(b) against an employee's recovery of past lost wages when the evidence showed that the employee's wages prior to the injury averaged more per week than the wage benefits paid by the insurer per week through the time of the trial. Hammond v. Lee, 244 Ga. App. 865, 536 S.E.2d 231 (2000).

Trial court properly dismissed the insurer's action for recovery of workers' compensation benefits paid to the victim and properly dismissed the insurer's subrogation lien because the insurer failed to meet its burden of proving that the victim had been fully and completely compensated for losses under O.C.G.A. § 34-9-11.1(b), when experts' testimony was deficient causing speculative evaluations. CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236, 564 S.E.2d 836 (2002).

Insurer may not obtain reimbursement, via a subrogation claim, unless and until its insured has been completely compensated for the insured's losses. Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866, 570 S.E.2d 60 (2002).

Employer who paid a workers' compensation claimant workers' compensation benefits under Texas law was not entitled to a subrogation claim to the proceeds of a tort settlement against the alleged tortfeasors under the full faith and credit and comity provisions of U.S. Constitution. Tyson Foods, Inc. v. Craig, 266 Ga. App. 443, 597 S.E.2d 520 (2004).

As an employee who was injured in Georgia was entitled to receive workers' compensation benefits in Georgia, Georgia workers' compensation law governed an insurer's subrogation claim under O.C.G.A. § 34-9-11.1(b) against the employee's settlement of a personal injury action; as Tennessee workers' compensation benefits were paid to the employee, the insurer was not entitled to subrogation. Liberty Mut. Ins. Co. v. Roark, 297 Ga. App. 612, 677 S.E.2d 786 (2009).

Tennessee employer's subrogation action against third parties who injured its employee was precluded by O.C.G.A. § 34-9-11.1(b), which limited the right of subrogation to employers who paid benefits under the Georgia Workers' Compensation Act, and the employer had paid benefits under Tennessee law. Performance Food Group, Inc. v. Williams, 300 Ga. App. 831, 686 S.E.2d 437 (2009).

- Following settlement of a negligence action, the court erred in apportioning attorney fees under O.C.G.A. § 34-9-11.1(d), as the section read as a whole does not permit an apportionment of fees in the absence of the employer's recovery on its subrogation lien after the injured employee has been fully and completely compensated. Simpson v. Southwire Co., 249 Ga. App. 406, 548 S.E.2d 660 (2001).

- Trial court abused the court's discretion in failing to bifurcate, which resulted in comments and instructions that referred to the collateral source of workers' compensation benefits, but the refusal to bifurcate was harmless error since the jury concluded that the tortfeasor and employer were not liable; thus, the jury never reached the issue of damages, rendering any error in the trial court's references to and instructions regarding the workers' compensation lien harmless. Endsley v. Geotechnical & Envtl. Consultants Inc., 339 Ga. App. 663, 794 S.E.2d 174 (2016).

- In resolving a conflicts of law issue involving a subrogation action by an insurer for a Tennessee corporation, wherein the employee was injured in Georgia and received Tennessee workers' compensation, although the employee was entitled to receive workers' compensation benefits in Georgia, Georgia workers' compensation law governed under O.C.G.A. § 34-9-11.1(b) rather than Tennessee law pursuant to Tenn. Code Ann. § 50-6-112(c). Liberty Mut. Ins. Co. v. Roark, 297 Ga. App. 612, 677 S.E.2d 786 (2009).

In a Tennessee employer's subrogation action against third parties who injured its employee, Georgia law governed because the employee was injured in Georgia. Performance Food Group, Inc. v. Williams, 300 Ga. App. 831, 686 S.E.2d 437 (2009).

- For purposes of its subrogation claim, the asserting employer is deemed an "employee" for statute of limitation purposes and is subject to the two-year statute of limitation applicable to the injured employee. Newsome v. Department of Admin. Servs., 241 Ga. App. 357, 526 S.E.2d 871 (1999).

Intervenor's claim for pain and suffering was a claim arising out of the conduct, transaction, or occurrence set forth in the original complaint and could be treated as an amendment by a party plaintiff relating back to the date of the original complaint for statute of limitation purposes. P. F. Moon & Co. v. Payne, 256 Ga. App. 191, 568 S.E.2d 113 (2002).

- When pursuing its subrogation rights, a workers' compensation insurer is not entitled to a jury trial on the question of whether the injured employee has been fully and completely compensated under O.C.G.A. § 34-9-11.1(b). Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 535 S.E.2d 511 (2000).

Cited in Int'l Maint. Corp. v. Inland Paper Bd. & Packaging, 256 Ga. App. 752, 569 S.E.2d 865 (2002); Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 598 S.E.2d 448 (2004); Toomer v. Allstate Ins. Co., 292 Ga. App. 60, 663 S.E.2d 763 (2008); Woodcraft by MacDonald, Inc. v. Ga. Cas. & Sur. Co., 293 Ga. 9, 743 S.E.2d 373 (2013); Walker v. Tensor Mach., Ltd., 298 Ga. 297, 779 S.E.2d 651 (2015).