Dallas Lawyer Michael Grossman


What is the Effect of Workers Compensation on a Family’s Wrongful Death Case?

If your family member has died in a work related accident, you and certain other family members may be able to pursue financial compensation from you’re loved one’s employer. However, Texas has an odd set of work injury laws that essentially classifies companies as either subscribers to the Texas workers’ compensation program or, alternatively, as non-subscribers. Depending upon the classification of your loved one’s employer, you and your family will have entirely different options to pursue compensation from the employer.

In this article, we will discuss the options available to family members that have lost a love one that worked for a workers’ compensation subscribing employer. (To learn about the options available to families whose loved one worked for the other classification of employer, non-subscribers, click here.)

Two Options Available When Your Loved One’s Employer Is a Workers’ Compensation Subscriber

If your loved one’s employer is a subscriber to workers’ comp, that is to say, if they buy into the Texas Department of Insurance sanctioned occupational injury plan, then you will have two options with regard to pursuing compensation. The first is a claim for ordinary workers’ comp benefits that are paid to surviving family members. The second option is to file a wrongful death claim against the employer and pursue them for punitive damages. Please note that the Texas Workers’ Compensation Act of 1993 was created to protect employers from lawsuits. As such, these cases are an uphill battle and should only be handled by an experienced attorney. Below, we’ll explain both kinds of claims in detail.

The Workers’ Compensation Death Benefits Claim

In Texas, workers’ compensation is a state-run insurance program that provides a limited variety of insurance benefits to injured employees, including benefits for lost income and for medical care. In the event that your family member’s employer carried workers’ compensation insurance you may make an ordinary claim for workers’ compensation death benefits. Under this claim you may receive $15,000 for burial and funeral expenses which will be paid to the person who incurred financial debt for their expenditures regarding the deceased’s burial costs.

Additionally, this claim includes ongoing payment of a portion of the worker’s salary that will be paid to a spouse or a child of the deceased, assuming that the child is 18 years of age or younger. If the child is older than 18 but younger than 26 then they have to be a full-time college student in order to receive compensation. Parents of the deceased cannot pursue any compensation. It is also important to note that there are no workers’ compensation benefits that account for pain and suffering of the deceased or most other types of damages that you can pursue in most other conventional wrongful death claims. Your family will basically only receive the bare minimum compensation from this particular source of benefits.

To illustrate, if your family member happened to be employed at a construction site and passes away, let’s assume that he receives workers’ compensation death benefits to the tune of 400.00 a week. Assuming that he was survived by his spouse and one minor child, his wife would receive 200.00 a week and his child would receive 200.00. However, when the child reaches the age of 18 he or she will no longer receive 200.00. Moreover, the wife will continue to receive her 200.00 until she remarries.

Frankly, these benefits are paltry and the only positive aspect is that they are generally paid on a no-fault basis, meaning that you don’t have to sue to get them; they just naturally pay these benefits based on eligibility.

The Wrongful Death Gross Negligence Claim

On the opposite end of the spectrum, your family may also be able to file a certain type of wrongful death claim against the employer known as a gross negligence wrongful death case. Standing in stark contrast to the WC death benefits that are voluntarily paid by the carrier as described above, pursuing the employer in gross negligence claim is a hotly contested matter.

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In order to file this claim your family member must have passed away due to the grossly negligent conduct of the employer. In other words, due to the fact that the employer participates in the state run WC program. the employer is basically shielded from lawsuits based on the ordinary negligence of the employer. So if the employer was moderately negligent and this resulted in your loved one’s death, the employer can’t be sued and you can only recover the above-referenced death benefits. However, if you can prove that they were grossly negligent, then you are allowed to sue them, but in a limited capacity.

Gross Negligence is a concept that is often misunderstood so here are a few example to provide some clarity on the subject. Our attorneys recently won a case that involved a truck driver that was killed during his sleep while riding as a passenger with a co-employee. The driver wrecked the vehicle while the deceased was sleeping and was responsible for his death. Through our discovery process it was revealed that the co-employee had a major drug problem that the employer was fully aware of and he was under the influence of several intoxicating substances at the time of the accident. The knowledge of the employer of this employee’s propensity to be intoxicated was sufficient to hold the employer grossly negligent for their failure to terminate his employment, which therefore allowed him to put other members of their workforce at risk.

Yet another case in which we pursued a gross negligence claim against an employer involved a worker who was working from a platform that was hanging from a crane-like apparatus. The owner of the company proceeded to engage in an altercation with the operator of the crane that the deceased was hanging from which caused the crane to pitch forward and ultimately resulted in the worker falling to his death. These are two prime examples of the circumstances that would warrant a gross negligence theory of recovery against an employer in a wrongful death claim. Note that these can be difficult to prove, and will always necessitate the advice and guidance of an experienced wrongful death attorney.

To recap: the negligence must be so severe that it “shocks the conscience” for you to be permitted to sue the employer beyond the workers’ compensation death benefits. If so, you may sue for punitive damages in a wrongful death cause of action. These damages are intended to punish the employer for their conduct and have the simultaneous effect of deterring other employers from engaging in similar activity. Your ability to succeed in this cause of action is wholly dependent on the strength of the evidence showing that this conduct was particularly offensive. These cases are challenging to litigate, however the attorneys at Grossman Law Offices have represented many clients under these circumstances and succeeding in providing them with a favorable outcome to their lawsuit.

In addition to proving gross negligence, you may also sue the employer if they harmed your loved one through a willful act or omission.

Before Accepting Burial of Death Benefits From Workers’ Compensation, It’s Important that You Contact an Experienced Work Accident and Wrongful Death Attorney

If you’ve lost a family member and are contemplating whether to accept death and/or burial benefits from your family member’s employer’s workers’ compensation insurance or to file a wrongful death lawsuit against the employer, you should contact the skillful and experienced workplace accident and wrongful death attorneys at Grossman Law Offices.

Our attorneys have more than 20 years of experience, and are available any time, day or night, to provide a free consultation regarding your options at 1-855-326-0000.


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