A common question many people ask is, if I’m injured at work, can I sue my employer? The answer is no. The reason is due to the exclusive remedy provision. Under this provision, employers are protected from being sued by employees and are shielded from being sued in tort. The system has essentially been set up as a no-fault system. However, employees do have the right to workers’ compensation if they are injured while working.
What is Georgia Workers’ Compensation?
Workers’ Compensation is defined as a set of laws to protect people injured at work with benefits in the form of monetary rewards to help avoid litigation/lawsuits. The benefits also apply to dependents of workers who are killed in work accidents.
Specifically, your workers’ compensation provides you with medical benefits, lost wages if you can’t work for at least seven days, vocational rehabilitation benefits, and compensation for your family if your work-related injury causes your death.
If you’ve experienced any of the below injuries at work, you are entitled to workers’ compensation:
- Falling Objects
- Machinery Injuries
- Repetitive Motion Injuries
- Industrial Accidents
- Vehicle Accidents
- Slip and Fall Accidents
If your employer has three or more regular employees, including seasonal, full-time, or part-time, they must carry workers’ compensation.
What is the Exclusive Remedy Provision?
The exclusive remedy provision found in O.C.G.A § 34-9-11 states that any employee injured at work in the state of Georgia has the right to receive workers’ compensation, as long as the injury was the result of performing their job duties. This is true regardless of who might have been at fault.
Under O.C.G.A § 34-9-11 employers have immunity from tort under the following conditions:
- The employees of the same employer or,
- The person who provides workers’ compensation benefits under a contract with the employer or,
- Construction design professionals or,
- General contractors even when they have never paid benefits to the individual injured at work (Wright Associates v. Rieder)
However, for the workers’ compensation claim to be upheld, the employee must have been injured while performing duties of the job.
In the Georgia Court of Appeals case Chapparal Boats v. Heath, the Claimant was an employee walking into work when her knee popped. There was no evidence of her slipping or falling at work when the injury occurred. However, the Employer denied the employee’s workers’ compensation claim arguing that the injury was a result of walking into work, and not a result of the actual job itself. The Georgia Court of Appeals ruled in favor of the Employer.
Are There Exceptions to the Exclusive Remedy Provision?
Yes. There are a few instances where a third party claim, civil claim, and workers’ compensation claim can be filed concurrently. An example is if an employee is injured at work while driving a company vehicle. The employee might file a claim against both the driver in the accident as well as a workers’ compensation claim with their employer.
Another example is negligence. Let’s say an employee is injured while operating a defective forklift, as a result of the equipment not being properly maintained. This could potentially result in a third party claim. Employees are barred from claiming negligence against an employer, but not a third party, such as the manufacturer of the equipment.
One key element to note is the topic of subrogation, which can occur when a third party claim is running concurrently with a workers’ compensation claim. If another party is found liable, the workers’ compensation carrier might attempt to assert a right of subrogation in an effort to recoup the money it has paid on the claim. In instances of subrogation, 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).
Additionally, 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. Currently the only way this can be proven is through a special verdict by a jury. Most cases resolve without a trial, therefore it is extremely unlikely that a workers’ compensation insurance carrier could prove that the injured worker was “made whole.”
The best thing to do if you are injured while working is to hire an attorney that is experienced in workers’ compensation claims, third party claims, and civil claims.
How Can A Lawyer Help With Your Workers’ Compensation Claim
If you’ve been injured at work, filing a workers’ compensation claim can be overwhelming. This is where Beth Gearhart can help. As a Georgia workers’ compensation lawyer, she will fight on your behalf to help get you the settlement benefits you deserve. The main difference between a positive result and a bad settlement is the workers’ compensation lawyer.
Please evaluate your options carefully and select an attorney that listens to you and focuses on your best interests.