By Ben Young
  During the 2020 legislative session, the Georgia General Assembly considered significant tort reform. Although legislators ultimately decided not to pass reform this term, proposals will likely return in future sessions. Georgia’s exclusive remedy provision bars tort claims against employers, but future tort reform will impact workers’ compensation claims through subrogation rights.
The exclusive remedy provision of Georgia’s Workers’ Compensation Act holds that an injured employee can only make a claim against an employer through the workers’ compensation system. This provision explicitly prohibits the employee from pursuing a tort claim against the employer for damages arising from a work-related accident.
The exclusive remedy provision generally does not limit the employee’s ability to pursue tort actions against third parties who may have caused or contributed to their work injury.   However, in a case from two weeks ago, Sprowson v. Villalobos, the Georgia Court of Appeals ruled that a claimant/plaintiff who is a borrowed servant cannot sue an employee of the “borrowing” employer.
Subrogation grants the employer/insurer a right to recover money paid to a claimant in some of these circumstances. Money can be recovered only from money the claimant receives from a third-party claim arising from the same work-related accident, and then only after the claimant has been “made whole.” A common scenario where subrogation may be possible is a work-related auto accident where the employee recovers damages from the other driver.
There are, however, several limitations on the employer/insurer’s subrogation rights. Recovery is limited to money paid to or on behalf of the claimant. Further, the “made whole” burden is often very difficult to meet. The employer/insurer can recover only from the excess of funds after the claimant has been fully and completely compensated. The statute is intentionally vague and provides no insight into what constitutes full and complete compensation. In addition, recovery cannot come from damages awarded for pain and suffering, which often constitute the majority of the employee’s damages from the third party.
These limitations often make recovery under subrogation difficult or uneconomical, especially when potential recovery is small or the injury is so severe that the claimant cannot be made whole. Nonetheless, pursuit may be worthwhile where there is a large sum to recover or the injury is fairly minor. For a comprehensive guide to subrogation rights in Georgia, see our Subrogation Handbook.