Georgia: Employer’s Subrogation Lien Fails Where No Proof That Injured Employee Had Been Made Whole

Unlike the situation in many other states, the subrogation lien of a Georgia employer and/or its insurer attaches to third-party recovery by the injured employee only after the injured employee has been fully and completely compensated for his economic and noneconomic losses [see OCGA § 34–9–11.1 (b)]. Moreover, the burden of proving that the employee has been fully compensated is on the employer. A Georgia appellate court held that a state trial court did not rely on an erroneous interpretation of the law when it determined that the employer failed to show that an injured employee had been fully and completely compensated for his losses following a forklift accident in which the employee suffered several facial bone fractures and brain damage. The Court indicated that the parties’ settlement document did not apportion the proceeds between economic and noneconomic losses. While the employer presented evidence of the amount of workers’ compensation benefits received by the employee, the trial court could not assume that the benefits paid to the employee were equal to his economic losses, given that lost wages are not fully covered by income benefits paid under the Act. While the employer presented expert testimony in the form of an attorney who testified that the level of the employee’s settlement meant that he had been made whole, the strength of that testimony was undermined, at least to a degree, by cross-examination. It was within the trial court’s discretion to determine that the employer had failed to meet its burden of proof.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Best Buy Co. v. McKinney, 2015 Ga. App. LEXIS 565 (Sept. 28, 2015) [2015 Ga. App. LEXIS 565 (Sept. 28, 2015)]

See generally Larson’s Workers’ Compensation Law, § 117.01 [117.01]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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