Third Party Claims – Workers Compensation
Third Party Claims
Third party claims are very common in workers’ compensation. People often wonder if they can sue their employer for emotional distress or for pain and suffering if they suffer a work-related claim. The answer is typically no as there is an “exclusive remedy” provision. Essentially, the workers’ compensation system was created as a no-fault system in order to provide injured workers with prompt medical care. In exchange, employers are typically shielded from being sued in tort.
However, there may be instances where there are both third party, civil claims as well as workers’ compensation claims which run concurrently. For example, an injured worker driving a company vehicle may have a claim against another driver in an auto accident as well as a workers’ compensation claim with their own employer. Another example of this might be if an injured worker worked in a factory and was injured by a defective forklift or a negligently maintained piece of equipment that was the responsibility of someone other than the direct employer. This creates the scenario where we see the third party claims issue.
Workers’ Compensation Benefits
In workers’ compensation, an injured worker can receive weekly income benefits, medical treatment, a possible permanent impairment rating and possible vocational rehabilitation services. However, a personal injury case also allows for pain and suffering and lost earning capacity among other things. Personal injury settlements are typically much higher value.
Subrogation in Workers’ Compensation
When there is a third party claim running concurrently with a workers’ compensation claim, there’s also the issue of subrogation. Essentially, the workers’ compensation carrier will attempt to assert a right of subrogation in an attempt to recoup the money it has paid on the claim if another party is found liable. However, Georgia follows the “made whole” doctrine. Therefore, the insurance company would not be entitled to reimbursement unless that person is “made whole (O.C.G.A. Sec. 33-24-56.1), Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646,647 (482 S.E.2d 325)(1997); Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162,164(598 S.E. 2d 448)(2004). It is extremely difficult for a workers’ compensation insurance carrier to prove that an injured worker has been “made whole”, or been fully compensated for their medical bills, lost wages and damages for pain and suffering. Under applicable Georgia case law, the only way this can be proven is through a special verdict by a jury and as most cases resolve without a trial it is extremely unlikely that a workers’ compensation insurance carrier could prove that the injured worker was “made whole.”
Workers’ Compensation Settlement Negotiations
Sometimes during settlement negotiations to the workers’ compensation claim lawyers will seek to obtain a “waiver of subrogation rights” from the insurance carrier. In reality, this is not necessary. Oftentimes this makes the workers’ compensation insurance carrier believe that they have obtained a bargaining chip in settlement discussions for the workers’ compensation claim when, in reality, their chance of prevailing and obtaining subrogation is extremely remote anyway. It is important if you have a third party claim and a workers’ compensation claim pending that you have attorneys well versed in both specialties who are communicating with each other.
Georgia Workers’ Compensation Information
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Georgia Workers’ Compensation Lawyer
At Gearhart Law Group we work with a network of very experienced attorneys that communicate frequently regarding case strategy and status. If you have been injured on the job or need free consultation on your Georgia workers’ compensation claim, contact Beth Gearhart at (404) 725-8810. Beth listens and cares about her clients!