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HB 1400 - Workers' compensation; employers' subrogation lien; certain waiver

Bordeaux, Tom (151st)	Smith, Larry (109th)

Status Summary	HC:	Judy	SC:	I&L	FR:	02/09/00	LA:	03/15/00	S - Favorably Reported (CSFA ) (Am )

First Reader Summary

A BILL to amend Code Section 34-9-11.1 of the Official Code of Georgia Annotated, relating to an employee's or survivor's right of action against a person other than an employer, so as to provide for a waiver of an employer's subrogation lien or other right of recovery unless an employer or employer's insurer provides a timely response to information requested by an injured employee under certain circumstances; and for other purposes.

Code Sections - 34-9-11.1

HB 1400                                          HB 1400/CSFA 
 
      H. B. No. 1400 (COMMITTEE SUBSTITUTE) (AM) 
      By:  Representatives Bordeaux of the 151st and Smith of the 
      109th 
 
 
                        A BILL TO BE ENTITLED 
                               AN ACT 
 
 
  1- 1  To amend Code Section 34-9-11.1 of the Official Code of 
  1- 2  Georgia Annotated, relating to an employee's or survivor's 
  1- 3  right of action against a person other than an employer, so 
  1- 4  as to provide for a waiver of an employer's subrogation lien 
  1- 5  or other right of recovery unless an employer or employer's 
  1- 6  insurer provides a timely response to information requested 
  1- 7  by an injured employee under certain circumstances; to 
  1- 8  provide for a notice; to provide for the contents of such 
  1- 9  notice; to provide for related matters; to repeal 
  1-10  conflicting laws; and for other purposes. 
 
  1-11       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 
 
  1-12                           SECTION 1. 
 
  1-13  Code Section 34-9-11.1 of the Official Code of Georgia 
  1-14  Annotated, relating to an employee's or survivor's right of 
  1-15  action against a person other than an employer, is amended 
  1-16  by striking said Code section in its entirety and inserting 
  1-17  in lieu thereof the following: 
 
  1-18    "34-9-11.1. 
 
  1-19    (a) When the injury or death for which compensation is 
  1-20    payable under this chapter is caused under circumstances 
  1-21    creating a legal liability against some person other than 
  1-22    the employer, the injured employee or those to whom such 
  1-23    employee's right of action survives at law may pursue the 
  1-24    remedy by proper action in a court of competent 
  1-25    jurisdiction against such other persons, except as 
  1-26    precluded by Code Section 34-9-11 or otherwise. 
 
  1-27    (b) In the event an employee has a right of action against 
  1-28    such other person as contemplated in subsection (a) of 
  1-29    this Code section and the employer's liability under this 
  1-30    chapter has been fully or partially paid, then the 
  1-31    employer or such employer's insurer shall have a 
  1-32    subrogation lien, not to exceed the actual amount of 
  1-33    compensation paid pursuant to this chapter, against such 
  1-34    recovery.  The employer or insurer may intervene in any 
 
 
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  2- 1    action to protect and enforce such lien.  However, the 
  2- 2    employer's or insurer's recovery under this Code section 
  2- 3    shall be limited to the recovery of the amount of 
  2- 4    disability benefits, death benefits, and medical expenses 
  2- 5    paid under this chapter and shall only be recoverable if 
  2- 6    the injured employee has been fully and completely 
  2- 7    compensated, taking into consideration both the benefits 
  2- 8    received under this chapter and the amount of the recovery 
  2- 9    in the third-party claim, for all economic and noneconomic 
  2-10    losses incurred as a result of the injury. 
 
  2-11    (c) Such action against such other person by the employee 
  2-12    must be instituted in all cases within the applicable 
  2-13    statute of limitations.  If such action is not brought by 
  2-14    the employee within one year after the date of injury, 
  2-15    then the employer or such employer's insurer may but is 
  2-16    not required to assert the employee's cause of action in 
  2-17    tort, either in its own name or in the name of the 
  2-18    employee.  The employer or its insurer shall immediately 
  2-19    notify the employee of its assertion of such cause of 
  2-20    action, and the employee shall have a right to intervene. 
  2-21    If after one year from the date of injury the employee 
  2-22    asserts his or her cause of action in tort, then the 
  2-23    employee shall immediately notify the employer or its 
  2-24    insurer of his or her assertion of such cause of action, 
  2-25    and the employer or its insurer shall have a right to 
  2-26    intervene.  In any case, if the employer or insurer 
  2-27    recovers more than the extent of its lien, then the amount 
  2-28    in excess thereof shall be paid over to the employee.  For 
  2-29    purposes of this subsection only, 'employee' shall include 
  2-30    not only the injured employee but also those persons in 
  2-31    whom the cause of action in tort rests or survives for 
  2-32    injuries to such employee. 
 
  2-33    (d) In the event of a recovery from such other person by 
  2-34    the injured employee or those to whom such employee's 
  2-35    right of action survives by judgment, settlement, or 
  2-36    otherwise, the attorney representing such injured employee 
  2-37    or those to whom such employee's right of action survives 
  2-38    shall be entitled to a reasonable fee for services; 
  2-39    provided, however, that if the employer or insurer has 
  2-40    engaged another attorney to represent the employer or 
  2-41    insurer in effecting recovery against such other person, 
  2-42    then a court of competent jurisdiction shall upon 
  2-43    application apportion the reasonable fee between the 
  2-44    attorney for the injured employee and the attorney for the 
  2-45    employer or insurer in proportion to services rendered. 
 
 
                                 -2- 
 
 
 
  3- 1    The provisions of Code Sections 15-19-14 and 15-19-15 
  3- 2    shall apply. 
 
  3- 3    (e) The injured employee or those to whom such employee's 
  3- 4    right of action survives at law may notify the employer 
  3- 5    and the employer's servicing agent or such employer's 
  3- 6    insurer by certified mail that a settlement or other 
  3- 7    resolution of the right of action against such other 
  3- 8    person as contemplated in subsection (a) of this Code 
  3- 9    section has been reached and request a statement of the 
  3-10    correct name of the employer or such employer's insurer 
  3-11    having the subrogation lien pursuant to subsection (b) of 
  3-12    this Code section, and of the amount of the subrogation 
  3-13    lien, including an itemization of the basis therefor, 
  3-14    including but not limited to, the names of the payees of 
  3-15    benefits and medical expenses, the dates of service or 
  3-16    payment or both, and the amounts thereof.  The employer 
  3-17    and the employer's servicing agent or such employer's 
  3-18    insurer shall respond to such request and provide the 
  3-19    requested information within 20 days of the date on which 
  3-20    the notice and request were received or on which receipt 
  3-21    of the notice and request was refused by the employer, the 
  3-22    employer's servicing agent, or such employer's insurer. 
  3-23    Failure to so provide and respond shall waive any 
  3-24    subrogation lien or other right of recovery. 
 
  3-25    (f) Any notice required in subsection (e) of this Code 
  3-26    section shall include the following information: 
 
  3-27      (1) The name of the injured employee in which the claim 
  3-28      was filed with the Board; 
 
  3-29      (2) The full name of the injured employee on the date of 
  3-30      the notification, if different; 
 
  3-31      (3) The social security number of the injured employee; 
 
  3-32      (4) The insurance claim number assigned to the claim by 
  3-33      the employer's insurer, if known; 
 
  3-34      (5) The claim number assigned to the claim by the 
  3-35      employer, if known; 
 
  3-36      (6) The date of the accident; 
 
  3-37      (7) If the injured employee or those to whom such 
  3-38      employee's right of action survives at law are 
  3-39      represented by an attorney, the name, business address, 
  3-40      and business telephone number of such attorney; and 
 
 
 
 
                                 -3- 
 
 
 
  4- 1      (8) A statement that if the recipient of the notice does 
  4- 2      not respond to such request and provide the requested 
  4- 3      information within 20 days of the date on which the 
  4- 4      notice and request were received or on which receipt of 
  4- 5      the notice and the request was refused by the employer, 
  4- 6      employer's servicing agent, or employer's insurer, 
  4- 7      failure to so provide and respond shall waive any 
  4- 8      subrogation lien or other right of recovery pursuant to 
  4- 9      this Code section. 
 
  4-10    (e)(g) It is the express intent of the General Assembly 
  4-11    that the provisions of subsection (c) of this Code section 
  4-12    be applied not only prospectively but also retroactively 
  4-13    to injuries occurring on or after July 1, 1992." 
 
  4-14                           SECTION 2. 
 
  4-15  All laws and parts of laws in conflict with this Act are 
  4-16  repealed. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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