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.