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We are on the last of a seven-part series about the workers’ comp
subrogation lien under Georgia law. When an employer pays benefits to
an employee who was hurt on the job, the employer has a lien, which means
the right to make the employee pay those benefits back if someone else
also ends up paying the benefits for the employee. See
O.C.G.A. § 34-9-11.1. The lien is
subrogated because the employer or workers’ compensation insurance company
has the right to step into the employee’s shoes for purposes of
getting paid back for the benefits it paid out on behalf of the employee
(such as medical bills and lost wages). Today I will be writing about
how the burden of proof and legal procedure work in a workers’ compensation
subrogation lien.

The workers’ comp lien often affects the
personal injury clients I represent here in Georgia. For example, one of my car accident
clients drove a van filled with school kids as part of her job. Another
driver negligently ran into her, and the insurance company for that driver
had to compensate my client for her losses. Meanwhile, because my client
was hurt on the job, her employer had paid her medical bills and her lost
wages. When the driver paid up, the employer was ready and waiting with
outstretched hand, wanting my client to turn over all the money she had
just been paid.

Georgia law gives employers a lien, but as a matter of fairness it also
makes a number of exceptions to the general rule that employees have to
pay back an employer if they receive compensation from a third party.
The law recognizes that the workers’ compensation statute is very
limited. The employer has to (is supposed to) pay for any injuries that
occur in the course of the employment, but the law puts substantial restrictions
on how much the employer will have to pay. In addition, the purpose of
the workers’ compensation statute is to make sure workers are covered
financially when they are hurt on the job; if the employee had to reimburse
the employer before he himself was fully compensated, the purpose of the
statute would be defeated.

Burden of Proof. In keeping with the purpose of the statute, the courts put the burden
of proof on the employer or its workers’ compensation insurance
carrier to prove that the employee has been fully and fairly compensated.
On the issue of whether the employee has been “fully and completely
compensated,” “the employer carries the burden of proof, whether
the employee has received compensation from the tortfeasor through a jury
award or by settling his claim against the tortfeasor.”
City of Warner Robins v. Baker, 255 Ga. App. 601, 604 (Ga. Ct. App. 2002). . Until the employee is compensated,
the employer has no right to get any money back via its subrogation lien.

The employer or its insurer must prove the amount of losses incurred by
the plaintiff, and then show that the amount of compensation the plaintiff
received exceeds these losses. Where the employer/insurer contends that
the injuries were not connected to the accident, it also must prove that
point. For example, in
Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 341 (Ga. Ct. App. 2000), the Court found that the employer,
insurer “bore the burden of showing that the death within 16 months
of the collision, for which death the family had been compensated by the
third parties responsible for the accident, was not a part of the losses
resulting from the collision.”

Legal Procedure. The trial court, and not the jury, makes the ultimate determination as
to whether the plaintiff (the employee) was “fully and completely

The trial court and not a jury must determine if the employee has been
fully and completely compensated by workers’ compensation benefits
and by a recovery from a third-party tortfeasor. . . . Since subrogation
for workers’ compensation benefits was unknown at common law, then
neither party has a right to a jury determination of whether or not the
subrogation lien attaches or full and complete compensation for the employee
was obtained.

Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866, 870-871 (Ga. Ct. App. 2002).

The author of this seven-part blog series on workers’ compensation
liens is Lee Wallace, a
personal injury lawyer and
car accident attorney in Atlanta, Georgia.


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