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Wrongful Death Claims Barred By Workers’ Comp for On-the-Job Injuries

Many times when workers are hurt on the job, they get better. Workers’ compensation serves to aid the employee and his or her family financially until a return to work is possible. balance2

However, sometimes the worker won’t get better. Sometimes, the result of the accident is death.

Families need to know that filing a wrongful death claim may not be an option in these cases, unless the claim for liability or negligence is against a third-party, someone other than the employer.

Workers’ compensation death benefits  are available to surviving family members and dependents, and they should timely file request for benefits. They should also explore whether third-party liability is a factor, as the workers’ compensation death benefits are capped at $150,000, with a $7,500 burial allowance if the death occurs within one year of the incident (or five years if it followed a period of total disability). Wrongful death cases don’t have those kind of strict limits.

Recently in Massachusetts, the family of a woman who was killed on the job attempted to sue her employer for negligence. In the case of Estate of Moulton v. Puopolo stemmed from the death of a residential treatment counselor at the hands of a man to whom she was providing treatment. The  plaintiffs claimed the directors were negligent because the procedures they had in place resulted in a failure to provide facility staffers with information regarding new patients’ criminal background or violent tendencies. Had they done so, the plaintiffs held, this man would never have been admitted to the facility and, even if he were, would never have been left alone with the staffer or with access to potentially dangerous objects.

However, the Massachusetts Supreme Judicial Court held that the defendants were immune from the lawsuit under the exclusive remedy provision of the state’s Workers’ Compensation Act.

In other words, the only remedy her surviving relatives had was workers’ compensation because her injuries occurred on the job. Even then, they may not be able to claim such benefits because she did not have any dependents.

This is why exploring third-party liability can be such a vital option.

In Florida, the same principle applies. Florida Statute 440.16 covers how workers’ compensation benefits are to be meted out in the event of a worker death. The law holds that if there is a spouse, but no child, the spouse will be entitled to receive 50 percent of the average weekly wage until he or she dies. If the worker had a spouse and children, the spouse will still receive 50 percent, while the children will receive 16.5 percent. If there are children and no spouse, each child will be entitled to 33.5 percent of the decedent’s weekly wages. Parents who were dependent can receive up to 25 percent of weekly wages and dependent siblings or grandchildren can receive up to 15 percent each.

There are additionally provisions to help children pay for college and to aid in the care of a child who is physically and/or mentally incapacitated.

Contact the Hollander Law Firm. Call  888-751-7770 for a free and confidential consultation.

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