Select Page

I have been writing a series of blog entries about the workers’ compensation
subrogation lien in Georgia law. As a
Georgia personal injury lawyer, I often represent clients who have been injured on the job – perhaps
in a car wreck while they were driving for work, or by a defective product
that they were using to do their work.

When a worker is injured at work, the employer (or its workers’ compensation
insurance company) is supposed to pay the worker’s medical bills,
expenses, and lost wages. The employer has to pay this amount without
arguing about whether the injury was someone else’s fault –
the tradeoff being that the employer pays far, far less than it would
have to pay if the employee could sue the employer. Meanwhile, the client
may come to me because he has a claim against the driver who hit their
company vehicle, or against the manufacturer for
product liability.

After the client recovers (gets money) from the other driver, or from the
manufacturer, the employer or its workers’ compensation carrier
wants its money back. It wants my client to hand over the money he just
got from the person who hit him in the auto accident, or from the manufacturer
who made the product that was defective.

I have been doing a series about the employer’s claim to get its
money back – which is called a subrogation lien – and the
restrictions that Georgia law puts on the employer’s right to a lien.

Yesterday I discussed the fact that the employer or the insurance company
cannot be paid back until my client has been fully compensated. Many times
my client has not been – and cannot be — fully compensated,
and so under Georgia law the employer or the insurance company does not
have a right to get its money back. See
O.C.G.A. § 34-9-11.1.

When can the employer gets its money back? Georgia law applies one critical
rule: the employer cannot get paid back until my client has been fully
compensated. If my client still has not been fully reimbursed (because,
for example, there was not enough insurance), then he does not have to
reimburse the employer.

Example 1: The insurance company cannot get compensation until all of my
client’s medical expenses have been covered.

An insurance company cannot be paid until the injured person had recovered
all of the money he needs to pay his medical expenses. Many, many times
the medical expenses far exceed what the workers’ compensation carrier
has paid. When that happens, the client has huge bills left unpaid. In
that case, the insurance company cannot recover until my client’s
medical bills are fully paid. See
Hartford Ins. Co. v. Fed. Express Corp., 253 Ga. App. 520, 522-523 (Ga.
Ct. App. 2002)
(insurer had not shown that plaintiff was fully compensated where “there
was no specific payment made for medical expenses, merely a lump sum settlement”).

Rule 2: The employer or insurance carrier cannot collect on its lien for
wage payments until my plaintiff has been fully compensated for her lost wages.

Courts are especially strict as they scrutinize whether a claimant has
been paid all of his lost wages. While workers’ compensation policies
are supposed to cover all of an employee’s medical bills, they pay
only about 2/3 of the wages an employee was making at the time he was
injured. As a result, the Court of Appeals has held:

“Where, for example, the employee’s weekly wages exceeded the
amount of the workers’ compensation weekly benefit actually received,
the employer would not be allowed to recover the weekly benefits paid
unless and until such time as the employee has been compensated for the
difference between the workers’ compensation weekly benefit actually
received and the employee’s normal weekly wage.”

N. Bros. Co. v. Thomas, 236 Ga. App. 839, 841-842 (Ga. Ct. App. 1999) (emphasis added). See also
Hammond v. Lee, 244 Ga. App. 865, 867-868 (Ga. Ct. App. 2000) (plaintiff was not fully
compensated where lien jury had returned small lost wages verdict, and
insurer had only paid benefits of about two thirds of the employee’s
regular earnings; the two payments combined did not fully compensate the

This blog is being written by Atlanta, Georgia,
personal injury attorney Lee Wallace.


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.