| HB 1400 - Workers' compensation; employers' subrogation lien; certain waiver |
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.
HB 1400 LC 19 4580
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 related matters; to repeal conflicting laws; and
1- 9 for other purposes.
1-10 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
1-11 SECTION 1.
1-12 Code Section 34-9-11.1 of the Official Code of Georgia
1-13 Annotated, relating to an employee's or survivor's right of
1-14 action against a person other than an employer, is amended
1-15 by striking said Code section in its entirety and inserting
1-16 in lieu thereof the following:
1-17 "34-9-11.1.
1-18 (a) When the injury or death for which compensation is
1-19 payable under this chapter is caused under circumstances
1-20 creating a legal liability against some person other than
1-21 the employer, the injured employee or those to whom such
1-22 employee's right of action survives at law may pursue the
1-23 remedy by proper action in a court of competent
1-24 jurisdiction against such other persons, except as
1-25 precluded by Code Section 34-9-11 or otherwise.
1-26 (b) In the event an employee has a right of action against
1-27 such other person as contemplated in subsection (a) of
1-28 this Code section and the employer's liability under this
1-29 chapter has been fully or partially paid, then the
1-30 employer or such employer's insurer shall have a
1-31 subrogation lien, not to exceed the actual amount of
1-32 compensation paid pursuant to this chapter, against such
1-33 recovery. The employer or insurer may intervene in any
1-34 action to protect and enforce such lien. However, the
-1-
2- 1 employer's or insurer's recovery under this Code section
2- 2 shall be limited to the recovery of the amount of
2- 3 disability benefits, death benefits, and medical expenses
2- 4 paid under this chapter and shall only be recoverable if
2- 5 the injured employee has been fully and completely
2- 6 compensated, taking into consideration both the benefits
2- 7 received under this chapter and the amount of the recovery
2- 8 in the third-party claim, for all economic and noneconomic
2- 9 losses incurred as a result of the injury.
2-10 (c) Such action against such other person by the employee
2-11 must be instituted in all cases within the applicable
2-12 statute of limitations. If such action is not brought by
2-13 the employee within one year after the date of injury,
2-14 then the employer or such employer's insurer may but is
2-15 not required to assert the employee's cause of action in
2-16 tort, either in its own name or in the name of the
2-17 employee. The employer or its insurer shall immediately
2-18 notify the employee of its assertion of such cause of
2-19 action, and the employee shall have a right to intervene.
2-20 If after one year from the date of injury the employee
2-21 asserts his or her cause of action in tort, then the
2-22 employee shall immediately notify the employer or its
2-23 insurer of his or her assertion of such cause of action,
2-24 and the employer or its insurer shall have a right to
2-25 intervene. In any case, if the employer or insurer
2-26 recovers more than the extent of its lien, then the amount
2-27 in excess thereof shall be paid over to the employee. For
2-28 purposes of this subsection only, 'employee' shall include
2-29 not only the injured employee but also those persons in
2-30 whom the cause of action in tort rests or survives for
2-31 injuries to such employee.
2-32 (d) In the event of a recovery from such other person by
2-33 the injured employee or those to whom such employee's
2-34 right of action survives by judgment, settlement, or
2-35 otherwise, the attorney representing such injured employee
2-36 or those to whom such employee's right of action survives
2-37 shall be entitled to a reasonable fee for services;
2-38 provided, however, that if the employer or insurer has
2-39 engaged another attorney to represent the employer or
2-40 insurer in effecting recovery against such other person,
2-41 then a court of competent jurisdiction shall upon
2-42 application apportion the reasonable fee between the
2-43 attorney for the injured employee and the attorney for the
2-44 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 or
3- 5 such employer's insurer by certified mail that a
3- 6 settlement or other resolution of the right of action
3- 7 against such other person as contemplated in subsection
3- 8 (a) of this Code section has been reached and request a
3- 9 statement of the amount of the subrogation lien, including
3-10 an itemization of the basis therefor, including but not
3-11 limited to, the names of the payees of benefits and
3-12 medical expenses, the dates of service or payment or both,
3-13 and the amounts thereof. The employer or such employer's
3-14 insurer shall respond to such request and provide the
3-15 requested information within 15 days of the date on which
3-16 the notice and request were received or on which receipt
3-17 of the notice and request was refused by the employer or
3-18 such employer's insurer. Failure to so provide and
3-19 respond shall waive any subrogation lien or other right of
3-20 recovery.
3-21 (e)(f) It is the express intent of the General Assembly
3-22 that the provisions of subsection (c) of this Code section
3-23 be applied not only prospectively but also retroactively
3-24 to injuries occurring on or after July 1, 1992."
3-25 SECTION 2.
3-26 All laws and parts of laws in conflict with this Act are
3-27 repealed.
-3-
Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 02/08/00
