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At my
personal injury law firm, I often work with clients who have been injured while they were working.
The client may have gotten personal injuries on the job when she was in a
car accident while she was driving for her work. In that case, the client may have
a lawsuit against the other driver who negligently hit her. The client
may have gotten hurt on the job by a
defective product, meaning that the client may have a product liability suit against the
manufacturer.

Because the clients were hurt while they were working, the employer is
supposed to pay workers’ compensation benefits, regardless of whose
fault the injury was. (As I have explained in earlier posts, the employer
may have to pay more often than it would have otherwise, but it receives
a huge payoff because the amount it has to pay is far, far less than it
would have been if the workers’ compensation system did not exist.)
If the client does recover from a third party, then under Georgia law,
the employer (which probably has a workers’ compensation insurance
company) may have a lien – which means a right to make the employee
pay back everything the employer paid on his behalf. See
O.C.G.A. § 34-9-11.1.

But the law does not give the employer or its workers’ compensation
insurance carrier an unfettered right to get its money back from the employee.
I have been devoting a series of blog entries to the restrictions that
the law places on the employer’s lien.

One significant restriction is that if the employer or its workers’
compensation insurance company never paid benefits for a particular kind
of loss that the employee suffered, then it is not entitled to get paid
back if the employee recovers for those losses.

For example, workers’ compensation does not cover an employee’s
pain and suffering, nor does it cover the employee’s spouse for
his or her loss of consortium. Since workers’ compensation does
not cover either of these types of damages, if an employee collects for
these types of injuries, it would be patently unfair to ask the employee
to hand the money over to the employer that only paid for medical bills
and lost wages.

Payments for pain and suffering

A workers’ compensation carrier pays “no sums for pain and
suffering in [a claimant’s] workers’ compensation claim. If
the lien was allowed to apply to the pain and suffering award of $ 25,000,
[the claimant] would then not have been compensated for his pain and suffering
claim.”
N. Bros. Co. v. Thomas, 236 Ga. App. 839, 841-842 (Ga. Ct. App. 1999). See also Hammond v. Lee,
244 Ga. App. 865, 868 (Ga. Ct. App. 2000). For that reason, a workers’ compensation
carrier’s lien does not apply to any amounts paid to a plaintiff
for her pain and suffering.

Payments to third parties, such as the plaintiffs’ spouse

The workers’ compensation lien only extends to “the amount
of disability benefits, death benefits, and medical expenses paid under
this chapter.” O.C.G.A. § 34-9-11.1. Under Georgia negligence
law, an injured person’s spouse has a claim for loss of consortium.
Worker’s compensation insurance, however, does not cover any of
the losses suffered by the spouse of an injured worker. Since the employer/insurance
company did not make any payments to the spouse, for obvious reasons the
statutory lien does not apply.

The workers’ compensation lien could affect any type of negligence
case, and not just car accident lawsuits or product liability/defective
product claims. The overarching issue is whether the person was hurt on
the job, and not how they were hurt.