I am a
Georgia personal injury attorney who handles
car accident,
product liability, and other personal injury cases. The clients in these various types of
cases have different personal injuries and were hurt in different ways,
but they still may have one thing in common: they may have been hurt on
the job. The law gives the employer a right to be paid back (a “subrogation
lien”), and I have been blogging about the exceptions to this lien.
Today I will be discussing the exception for future benefits that the
employer or workers’ compensation carrier has not yet paid.
For readers who are just joining us, in Georgia, when a worker is hurt
on the job, his employer (or the employer’s workers’ compensation
insurance company) has to pay his medical bills and lost wages under our
workers’ compensation system. Under workers’ comp, the employer
pays for every injury that occurs on the job, regardless of who caused
it. The law only requires the employer to pay a very limited amount.
In addition to a worker’s compensation claim, the worker who got
hurt on the job may have a suit against a third party. For example, a
bus driver might get hurt when someone runs into the bus he’s driving.
The bus driver was not at fault for the wreck, and so he has a car accident
claim against the driver who ran into the bus. In the meantime, his employer
is supposed to pay his medical bills and lost wages since the bus driver
was hurt while he was on the job working. When an employee does collect
money from a third party, Georgia law gives the employer a subrogation
lien that will allow it to get back the money it paid on behalf of the
employee, such as medical bills and lost wages.
O.C.G.A. § 34-9-11.1. This statutory ability to force the employee to pay money back is called
a lien. In order to be fair to the employee, Georgia law places several
restrictions on the amount the employee has to pay back.
As one of those exceptions, the law does not give the employer or workers’
compensation insurance carrier a lien for future benefits that it has
not yet paid. The workers’ compensation company is only entitled
to a lien on benefits that it already has paid:
We must presume that the legislature was aware of the prior law, which
contemplated a lien on benefits not yet paid, and it could have used the
same language in the new law, if it so desired. It did not.
CGU Ins. Co. v. Sabel Indus., 255 Ga. App. 236, 242-243 (Ga. Ct. App. 2002).
The exception makes sense. The employer or insurance company has not yet
paid the benefits, and for a host of reasons – for instance, the
death of the employee – it might never have to. The employer still
can make its claim, but not until after it has paid the benefits:
This is not to say that [the employer] can never assert and pursue recovery
on a lien. After benefits have been paid, at which time they are no longer
“future” benefits, an employer/insurer should be permitted
to assert and seek recovery on a subrogation lien to the extent of the
benefits paid.
Id. By waiting until the benefits are actually paid, the court can be sure
it is not giving the employer or workers’ compensation carrier a windfall.