What Are the Workers’ Comp Insurer’s Subrogation Rights in Georgia?
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Three rights, all from O.C.G.A. § 34-9-11.1: a lien on the worker’s recovery from a negligent third party, collectible only if the worker is made whole; the right to intervene in the worker’s lawsuit to protect that lien; and, if the worker has not sued within one year of the injury, the option to bring the worker’s tort claim itself. The worker must be notified and may join that suit.
The rights in the order they arise
| Right | When it applies | Statute |
|---|---|---|
| Lien on the third-party recovery | Once benefits have been "fully or partially paid"; capped at "the actual amount of compensation paid" | § 34-9-11.1(b) |
| Intervention | In "any action to protect and enforce such lien" | § 34-9-11.1(b) |
| Bringing the claim itself | If the employee has not sued "within one year after the date of injury" | § 34-9-11.1(c) |
| No share above the lien | When the employer or insurer "recovers more than the extent of its lien", the excess "shall be paid over to the employee" | § 34-9-11.1(c) |
The made-whole limit
The lien “shall only be recoverable if the injured employee has been fully and completely compensated … for all economic and noneconomic losses incurred as a result of the injury” (§ 34-9-11.1(b)). The calculation, with an example, is in how the workers’ comp lien is calculated against a third-party settlement. The worker’s own fault is not part of that comparison (Homebuilders Association of Georgia v. Morris, 1999).
The one-year rule, step by step
Section 34-9-11.1(c) divides the time after the injury:
- Year one. The employee controls the third-party claim. The statute does not give the employer or insurer a right to file it during this period.
- After one year, if the employee has not sued. The employer or insurer “may but is not required to assert the employee’s cause of action in tort, either in its own name or in the name of the employee”, and must “immediately notify the employee”, who “shall have a right to intervene”.
- If the employee sues after one year. The employee “shall immediately notify the employer or its insurer”, which has a right to intervene.
- Throughout. The action “must be instituted in all cases within the applicable statute of limitations”, which for personal injury is two years (§ 9-3-33).
For this subsection, “employee” includes the people in whom the claim “rests or survives”, such as a family bringing a wrongful death claim.
What the insurer cannot reach
The statutory lien attaches to recoveries from a third party who caused the injury, not to the worker’s own uninsured motorist benefits (Stewart v. Auto-Owners Insurance Co., 1998). How attorney’s fees are divided out of the recovery is covered with the lien calculation.
Checklist for an injured worker with a third-party claim
- Note the injury date; the insurer’s option to sue begins one year later.
- Track the limitation period for the third-party claim, two years for personal injury (§ 9-3-33), which runs whatever happens under the one-year rule.
- Give the insurer notice of the suit if it is filed after the first year.
- Keep the total of benefits paid current, because it sets the lien ceiling.
- Document all losses, including noneconomic ones, for the made-whole comparison.
Which claims can be brought outside workers’ compensation in the first place is covered in whether you can sue for a workplace injury or only get workers’ comp.
Sources
- O.C.G.A. §§ 9-3-33, 34-9-11.1 (§ 34-9-11.1 text as published in October 2016 on a mirror site; no amendment recorded in the 2022 to 2026 legislative summaries).
- Homebuilders Association of Georgia v. Morris, 238 Ga. App. 194 (1999)
- Stewart v. Auto-Owners Insurance Co., 230 Ga. App. 265 (1998)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.