October 18, 2019

Can You Sue a Co-Worker for Negligence Following an On-the-Job Injury?

sue co-worker

The Georgia Supreme Court recently issued a very interesting decision about your right to sue a fellow employee for pain and suffering damages when the negligent act occurred at work and you are otherwise covered by workers compensation.

In the case of Smith v. Ellis, decided by the Georgia Supreme Court in September, 2012, both Ellis and Smith were employed by the Knight Group, a company that builds homes. On the morning of February 13, 2009, Ellis came by Smith’s house to borrow a tool for personal use. Smith was working at a new subdivision that was mostly empty land and Ellis decided to tag along because Ellis wanted to shoot his new shotgun in one of the empty fields.

Smith had finished his work for the day and was packing up his tools when Ellis accidently shot him while trying to clear a jam in the shotgun.

Smith thereafter filed a workers’ compensation claim against the Knight Group and a negligence action for damages against Ellis.  The Knight Group denied Smith’s claim and he eventually settled in a no liability stipulation.

A no liability stipulation means that the employer Knight Group denied that Smith was injured in the course of his employment but agreed to pay him a lump sum to close the file.

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Could the NFL Use an “Exclusive Remedy” Defense to Block Concussion Lawsuits?

traumatic brain injuryRecently, a number of retired football players have sued the NFL for damages arising from concussion injuries associated with the head trauma regularly incurred in professional football games.  Does the NFL have an argument that closed head injuries incurred by employees – the players – are on the job injuries that are subject to remedy only under workers’ compensation.

Under Georgia law, at least, workers’ compensation is the exclusive remedy for work injuries.   An employee cannot sue his employer for pain and suffering damages.

While the concussion litigation is just beginning, we can expect the NFL to argue that players should not be able to pursue civil damages outside of the workers’ compensation system.  The players will argue that they should not be limited to workers’ compensation remedies because the NFL withheld information about concussions and because of exclusions set out in the collective bargaining agreement between the NFL and the NFL Players Association.

The NFL has won one round in a related legal matter.

Recently, the Atlanta Falcons and the NFL sued the NFL Players Association to prevent injured players from filing workers’ compensation cases in California, where the available benefits are more generous than those provided for under Georgia law.   California law allows claims if the player played at least one game in the state.

The case went to arbitration and the Falcons and NFL won – Falcons players who assert injuries that were incurred while the player was under contract with the Falcons must be filed with the Georgia State Board of Workers’ Compensation.

Over the next few months, we will learn if the traumatic brain injuries suffered by NFL players will be considered as something other than a workplace injury thus making the players eligible for negligence damages.

Want to Sue Your Employer for Damages for an On-the-Job Injury – Georgia Law Says “No”

Many of my workers’ compensation clients express to me their surprise and dismay that their employer’s attitude seems to have changed overnight. Not infrequently, a loyal, hardworking, 20+ year employee will discover that her employer shows little loyalty or compassion if the worker files a workers’ compensation claim.

In cases where the employer now seems unfriendly and the on-the-job injury arises from poor safety procedures or other “negligent” conduct on the part of the employer, I am often asked if it is possible for the injured worker to sue the employer for money damages in negligence or for an intentional act.

Unfortunately, the answer to this question is almost always “no.” Georgia law – O.C.G.A. Section 34-9-11 – provides that workers’ compensation is an “exclusive remedy” for employees. The employer is protected from tort liability (i.e., negligence or intentional acts that give rise to damages) in exchange for providing a wide range of workers’ compensation benefits to the injured employee regardless of the reason for an accident.

In other words, even if you, as the employee, were at fault in causing your own injury, you still would be eligible for workers’ compensation benefits. In exchange for this “strict liability” protection, you lose the right to sue your employer. This trade-off is not optional – it is set out in the Georgia law.

Note that you retain the right to sue a third party for damages – for example if you are driving a truck for work and you get into an accident caused by another driver, you would have a workers’ compensation claim against your employer and a negligence action against the other driver.

There are some very limited exceptions to the “exclusive remedy” in workers’ compensation. In the Samuel vs. Baitcher case, a restaurant employee, Mr. Samuel, was injured and found eligible for workers’ compensation benefits. Unfortunately, the corporation that owned the restaurant had no workers’ compensation insurance and shortly after the accident went out of business. The corporation was owned and managed by Mr. & Mrs. Baitcher.

The Georgia Supreme Court held allowed Mr. Samuel to sue the Baitchers individually to recover an amount equal to what he should have received in workers’ compension. This is a rare result and appears to be somewhat fact specific. However, if your employer goes out of business and did not have insurance, this case may give you some chance at recovery, although actually recovering your money might be easier said than done.

In the vast majority of cases, therefore, your only remedy for an on-the-job injury will be within the workers’ compensation system and your recovery will be limited to what is provided for in the statute – lost time from work benefits (temporary total disability – called “TTD” or “TPD” benefits), permanent injury benefits (permanent partial disability or “PPD”) and medical treatment paid for by the employer. You cannot recover pain and suffering damages in workers’ compensation.