by Michael Memberg, Esq.

The Georgia Court of Appeals has issued two recent decisions regarding workers’ compensation subrogation, which remains a contentious subject between claimants’ attorneys and employers and insurers/servicing agents. The first case confirms the employer/insurer’s right to intervene. The second case shows the practical realities of enforcing a lien:

Kroger vs. Taylor (March 12, 2013)
In this case, an injured employee filed a personal injury action against a third-party within the two-year personal injury statute of limitations. The employer/insurer filed a motion to intervene to enforce its subrogation lien for workers’ compensation benefits paid to the employee, and the trial court denied the motion on the grounds that it was also subject to the two-year statute of limitations. However, the Court of Appeals reversed and held that there is no specific time limit on when an employer/insurer can intervene in a lawsuit to enforce its subrogation lien under O.C.G.A. § 34-9-11.1(c).

SunTrust Bank v. Travelers (March 28, 2013)
In this case, the employer/insurer had intervened in a third-party case to enforce a substantial workers’ compensation lien. However, the claimant and the third-party refused to allow the employer/insurer to participate in a settlement mediation and ultimately settled with the third-party with language indicating that the claimant was not fully and completely compensated—a legal requirement for the employer/insurer to recover on its lien.

After settlement, the claimant moved to extinguish the subrogation lien, which the trial court denied. The Court of Appeals agreed that the employer/insurer should have the opportunity to present evidence of full and complete compensation, but they also refused to address the issue of whether the employer/insurer could be barred from a settlement mediation.

Ultimately, the fact that the Court of Appeals was unwilling to take a position on whether an employer/insurer has a right to participate in a mediation to enforce a subrogation lien will likely embolden claimants’ attorney to continue to keep employers/insurers out of that process.