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.