When a worker is killed on the job, they are not the only victim. The family members they leave behind suffer immense emotional distress, financial losses, and are often driven by a feeling that something must be done to keep this from happening to some other family.
This guide is written to aid such victims by empowering them to understand:
- Their rights and remedies under Texas work injury law.
- How Texas work injury law functions.
What do we mean by rights and remedies? The concept is best illustrated with examples:
- Everyone knows that when the government forbids you to share your opinion, that act violates your 1st Amendment rights. You have the right to file a lawsuit, and the remedy you seek is to get an order from a judge instructing the government to stop the infringing conduct.
- Similarly, everyone understands that when you're rear-ended in a car wreck, you have the right to sue the other driver, and the remedy you seek is compensation for your injuries.
But since Texas work accident law is so complex and counterintuitive, few people can accurately tell you what your rights and remedies are. But in this guide, we're going to solve that problem. We'll start with the basics, explaining what your rights and remedies are, then we'll go into great detail, explaining why and how those rights and remedies exist.
Chapter 1 : What Are Your Rights and Remedies?
The shocking reality is that not all families who lose a loved one in a work accident have the same rights and remedies. The rights and remedies you may have depend on:
- Whether the employer participates in the workers' compensation program.
- The specifics of the relationship between the victim and the wrong-doer.
What this means in plain English is that there is not one law called "fatal work accident law" from which all victims will be granted the same rights and remedies.
Instead, there are different bodies of law, all enacted at different times, that work in combination. From this mishmash of laws comes four different fatal work accident scenarios that are possible under Texas law. That is to say, all fatal work accidents will fall legally into one of these categories. So, we describe the categories below and list the rights and remedies available to you depending on which scenario your loved one's accident falls under:
|1. Your loved one's employer DOES participate in the Texas Workers' Compensation program.||a) You have the right to receive Workers' Compensation Death Benefits.|
b) You have the right to sue the employer, if the employer caused the fatality through gross negligence.
|a) Workers' comp death benefits are 75% of the worker's wages paid in weekly checks, reimbursement for funeral expenses, and payment of medical bills related to end-of-life care.|
b) In a lawsuit for gross negligence, you are suing for punitive damages (i.e., money paid to victims to punish the employer)
|2. Your loved one's employer DOES NOT participate in the Texas Workers' Compensation program.||You have the right to file a conventional wrongful death claim against the employer, provided that some slight act of employer negligence caused your loved one's death.||With such a conventional wrongful death claim, you sue for compensatory damages (i.e., compensation for a wide variety of losses, including emotional distress, loss of consortium, lost wages, etc.).|
|3. Your loved one was a CONTRACTOR, rather than a traditional employee.||You have the right to file a conventional wrongful death claim against the employer, provided that your loved one was harmed by the employer's negligence. This right is subject to more limitations than if your loved one was a traditional employee, because employers do not have the same responsibilities to protect contractors that they do to protect employees.||With such a conventional wrongful death claim, you sue for compensatory damages (i.e., compensation for a wide variety of losses, including emotional distress, loss of consortium, lost wages, etc.).|
|4. Your loved one's death was caused on the job, but by a THIRD PARTY (someone who doesn't work for the same company).||You have the right to file a conventional wrongful death claim against the third party on the basis that their negligence caused your loved one's accident.||With such a conventional wrongful death claim, you sue for compensatory damages (i.e., compensation for a wide variety of losses, including emotional distress, loss of consortium, lost wages, etc.).|
As you can see, factors such as whether or not the employer opts into the workers' compensation program or is a non-subscriber, and the nature of the relationship between the wrong-doer and the deceased worker, can result in amazingly different outcomes. That is to say, the rights and remedies that are available to surviving family members can vary significantly based on those factors.
Here are some examples:
Example #1 — The Employer Participates in the Workers' Compensation Program
Steve works in a factory. His employer participates in the Texas workers' compensation program. A coworker runs over Steve with a forklift, causing his death. Steve's wife will be eligible to receive 75% of his wages, reimbursement for funeral expenses, and to have any medical expenses that resulted from the incident covered as well. The employer's workers' compensation insurance carrier will pay for all of that.
But can Steve's wife and kids file a wrongful death lawsuit against the company for the coworker's negligence? Probably not. This is because one cannot sue an employer for ordinary acts of negligence when the employer opts into the workers' compensation program.
The only scenario where Steve's wife would be able to sue the employer (who opted into workers' comp.), is if the employer was grossly negligent. So, for instance, if the CEO of the company was on cocaine and ran Steve over with a forklift, then Steve's family would be able to sue the company for gross negligence. Another way to think of this rule is that, when a company participates in the workers' compensation program, they can only be sued if their conduct was extreme and a worker is killed. They're un-suable if the worker died of an ordinary accident.
Example #2 — The Employer Is a Non-Subscriber to Workers' Compensation
Karen goes to work for a construction company that does not participate in the workers' compensation program. They are what we call a non-subscriber. The construction company fails to properly train her on how to safely operate a bulldozer. As Karen is operating the bulldozer, it flips over, and she is crushed by the bulldozer and dies. Under those circumstances, Karen's employer's negligence is slight. No extreme conduct by her employer led to her death. Rather, she was killed by the company's bad policies and their inability to train her.
Even though the negligence of the employer is not profound, here, Karen's family would still have the right to file a normal wrongful death lawsuit against the employer, and they're probably going to win.
But why? How come Karen's family can win when the employer committed a minor sin yet the family from the last example can't sue, even though their loved one was run down by a co-worker who wasn't paying attention? Well, when an employer opts into the workers' compensation program you can only sue when their negligence is extreme, and when the employer is a non-subscriber, you can sue even when their negligence is slight.
Example #3 — The Deceased Worker Is a Contractor
Bob is a cabinet installer. He is hired by a hotel to install cabinets in all of the rooms. Bob falls off his ladder and dies. Here, Bob's family would have a very difficult time holding the "employer,"—the hotel who hired him—liable for his death.
Why? Since he's a contractor, the hotel doesn't have an obligation to provide him with a safety harness, like they would if he were an employee. The way they see it, Bob is, for all practical purposes, his own company, and so they hired Bob, assuming that he's responsible for his own safety. In this instance, the hotel or construction company would not technically be his employer, and the family would have a difficult time bringing a claim against them.
Note: some exceptions apply, which you can read about below.
Example #4 — A Third Party Killed the Deceased Worker
Jill is a pizza delivery driver for Dominos Pizza. While out making a delivery, she's struck and killed by a drunk driver. Under those circumstances, the drunk driver is a third party, meaning they are not a part of the employer-employee relationship, but someone completely outside of it.
Jill's family would, of course, be able to bring a claim against the drunk driver, possibly even the bar that served the drunk driver, but the employer would not face any direct liability. There wouldn't be good grounds to sue the employer, under those circumstances.
Where things can get tricky is that sometimes these scenarios overlap. For example, there are times when an employer participates in the workers' compensation program, but a third party kills the employee. In that situation, it means the employee's family can't sue the employer, but they could receive workers' comp. death benefits, and then they could also sue the third party.
The point is that workplace fatality cases can get amazingly complex, which is why you should consult with an attorney. Now that you know the basics, we're going to take a deep dive to explain how and why all of these things work the way they do.
Chapter 2 : A Brief Look at The Three Bodies of Texas Fatal Work Accident Law
As we showed above, the rights and remedies someone has when they lose a loved one on the job vary depending upon circumstances. Some people may look at that and say, "Okay, I get it, when the employer has workers' comp or my loved one was a contractor, my rights and remedies may be different."
But why does it work that way?" The reason is that there is not just one "thing" called "Texas work injury law." Instead, what you have are three separate bodies of law that all overlap to some degree and make a combined thing we euphemistically call "Texas work accident law."
Let me give you an analogy to clarify. Let's say that you bought a car from the dealership, and it had a tire defect that caused you to crash into a light pole. In that accident scenario, you have pieces of:
- contract law,
- personal injury law,
- products liability,
- the Deceptive Trade Practices Act and consumer protection law,
- the law of property,
- and certain sections of the Texas Government Code, since the light pole is likely city property.
All of those pieces from separate bodies of law coalesce to tell you what your rights, remedies, and responsibilities are. If we called all of that "tire defect law," everyone would understand that we are talking about a mixture of different areas of the law mixed together.
Yet, when we talk about fatal work accidents, people tend to believe that there's just one place that they must look to get their answer; one body of law. But it's no different than the example we just discussed, and understanding how fatal work accident cases function requires one to learn pieces of the three bodies of Texas law that dictate how these cases work.
The Three Bodies of Texas Workplace Fatality Law
There are three bodies of Texas workplace fatality law:
- conventional negligence-based wrongful death law
- workers' compensation law
- non-subscriber law
In the next few chapters, we'll go into each of those bodies of law in detail. But before we do, we're going to explain a little bit of the history of how these three bodies of law developed.
The Origins of Negligence Law
In the early days of Texas, most people didn't work for an employer and were instead farmers or small-time artisans. As industry became common, so too, did work injuries.
Back in those days, when an injured worker wanted to receive compensation, their recourse was to sue the employer under a theory of negligence. Negligence is a legal doctrine that is based on the idea that all people in society must conduct themselves in a reasonably safe fashion. When they fail to do so and hurt someone else, they can be brought to court and forced to pay for the harm they caused.
Negligence law developed organically through the common law court system. In other words, no set of lawmakers ever sat down and wrote a statute that said you can sue when someone owes you a duty not to hurt you and then breaches that duty. Instead, judges created the legal doctrine as a matter of logic/natural law/common sense. Judges essentially derived from the human condition the idea that one person is liable to another when he hurts his fellow by acting in a way that is unreasonable.
Negligence law is today the primary tool by which careless people are held legally accountable. It is a robust area of the law that exists in every state and at the federal level. In relatively modern times (the 1970s), the idea emerged that, just the same way that a careless person can be held liable for injuring someone, so too can they be liable for killing someone. Thus, the modern-day doctrine of "wrongful death" was born. This of course means that, for all practical purposes, a "wrongful death case" is essentially a negligence case concerning a death rather than an injury.
Again, all work injury cases used to be negligence cases until the workers' compensation program came into existence.
The Origins of the Workers' Compensation Program
In Germany, in the 1800s, Otto von Bismarck introduced the idea of a workers' compensation program, where companies would basically pay into a fund, and injured workers would receive payments out of that fund. Those payments were made without any consideration of fault or negligence. Merely being hurt while on the job entitled a worker to automatic compensation irrespective of how the injury occurred. For all practical purposes, the German workers' compensation program was a welfare program.
Consider this analogy. Let's say that a few guests have been hurt in the backyard swimming pools at several of your neighbors' houses. A few of your neighbors have been sued because of these injuries and they don't like it. So, your neighborhood forms a lobbying organization and advocates to have a new law passed called the Swimmers' Compensation Act. The Swimmers Compensation Act gets passed, and what it basically says is that all homeowners in Texas have to pay $10 a month to the state. The state puts that money into an account. Now, when someone is injured in a swimming pool, they are no longer allowed to sue. Instead, they can file a "swimmers' comp. claim" which covers their medical bills and will pay them $100 a month in food stamps for 3 years. You may be thinking, "What happens when someone's injuries are really bad or when the pool was abnormally dangerous because the homeowner did something reckless? Shouldn't the victim be able to sue?" Too bad. The "swimmers' comp." law says that the remedy for swimmers is to file a claim. They can no longer sue, and must instead be content with the welfare payments they receive under the swimmers' comp law.
THAT is how workers' compensation laws work.
Texas—and basically every other state—adopted a similar welfare-based work injury scheme in the early 1900s. On paper, these workers' compensation programs provide workers with a financial safety net. The worker gets hurt and then they get paid automatically without the need for a lawsuit.
In reality, there is a tradeoff. Workers are stripped of their common law right to sue the employer for negligence. That right to sue is replaced with a scheme of guaranteed benefits. Whether losing one's right to sue in exchange for guaranteed benefits is a fair tradeoff depends on how generous those guaranteed benefits are, and in Texas, those benefits are not very generous at all.
The Origins of Non-Subscriber Law
To recap, first came negligence law, then came workers' compensation law. Negligence law required injured workers to file lawsuits. Workers' compensation law required guaranteed payments made to workers as a sort of financial safety net.
In every state other than Texas, the right to sue the employer for negligence was entirely eliminated and replaced by a workers' compensation program. This means that in all those states, all companies were forced to pay into a workers' compensation fund (or buy insurance through an approved participating insurer), whether they wanted to or not.
Well, many Texas companies didn't like the idea of being forced to participate in a workers' compensation program. As such, the workers' compensation program in Texas is optional.
By opting into (i.e., subscribing to) the workers' compensation program, Texas companies are granted complete immunity from negligence lawsuits filed by injured workers. But some companies are so safe (law firms, for instance) that the likelihood of a work injury claim is very low. Such companies see little value in the immunity to negligence suits that opting into the workers' compensation program affords them. Rather, all they see is an unnecessary expense to avoid a hypothetical liability that isn't really a concern.
Such employers would rather opt out of the workers' compensation program and run the risk of being sued on the off chance a worker is injured. We call such employers non-subscribers. When a worker is hurt or killed on the job and their employer is a non-subscriber, that worker or their family retains the right to sue the employer for negligence.
Why This Matters
This may all seem like boring trivia, but it's crucial to have that foundational understanding of how we got to this point and to see it as a slow, evolutionary process with respect to negligence law, while seeing the workers' compensation program as revolutionary, in that overnight they came in and said you no longer have the right to sue, but instead there's a benefits scheme that pays formulaic compensation.
In the next chapters, we're going to go through and delve into the specifics of each of those bodies of law, as it pertains to work accidents under the modern rules.
Chapter 3: Texas Workers' Compensation Law
As previously mentioned, workers' compensation is not the name we use to call the compensation or money that a worker receives. To be clear, that is how the term is misused by the general public. But in actuality, workers' compensation is the name of a program that was built to administer work injury claims. It's similar to how the "social security" is often thought of as the checks our elderly loved ones recieves, but it's more accurately the name of the program that dispenses said checks.
Workers' Compensation Program Rights and Remedies for Workers Killed on the Job
Workers' comp. is not a lawsuit for money. Workers' comp. is not judges, juries, lawyers, and trials. Workers' comp is, instead, more like filing for social security or unemployment benefits. Let's get into the specifics.
The modern Texas workers' comp. law comes from the Texas Labor Code. It basically says that when an employer purchases, through a private insurance carrier, a policy to cover injured workers that is approved by the Texas Department of Insurance, and consistent with the rules of the Texas Labor Code, then the employer basically receives immunity from lawsuits. The benefit to the employer is that they buy the policy and cannot be sued by injured workers. The alleged benefit to the employee is that they don't have to sue. It's just like filing for food stamps. You simply show, "I was on the job; I wasn't on drugs; no other limitation applies and therefore I get my benefits."
Here's how that applies to workplace fatalities. The rule from the Texas Labor Code §408.186 says benefits cover up to $10,000 in funeral expenses. The Texas Labor Code § 408.183 says the program covers wages paid to a spouse or a minor child, up to the age of 18, or age 25 for full-time students. These beneficiaries are paid 75% of the deceased workers' wages, subject to a limitation called the Average Weekly Wage. The Average Weekly Wage is supposedly the amount that the average Texan worker earns. This number changes over time, but it is currently about $1,110 per week. So, if a worker makes, say, $500 per week, their family will receive 75% of that worker's wages: $375 per week. But what if a worker makes $2,000 a week? Unfortunately, their wages are higher than the Average Weekly Wage, so their family would instead receive 75% of the Average Weekly Wage, not 75% of what the worker actually earned, which would be $825 per week.
In other words, the practical maximum workers' compensation death benefits a Texas family could receive is $825 per week. Suddenly, it should be quite clear why finding an exception that allows them to sue is so important for families who lose a loved one in an on-the-job accident.
Gross Negligence Wrongful Death Lawsuits: The Exception to the Workers' Comp Rule
We mentioned earlier that the goal of lawmakers when creating the Texas workers' compensation program was to eliminate an injured worker's right to sue their employer. However, there was one very specific right they couldn't eliminate; and that is, they could not eliminate lawsuits against an employer, by the dead worker's family, when an employee's family can prove that an employer was grossly negligent, not just ordinarily negligent.
Let's unpack that. In the early days of Texas, there was no such thing as a wrongful death lawsuit. Like most jurisdictions that followed the common law, if someone injured you, you could sue them, if they killed you, it was a legal freebie. In Texas, they thought that was a little too harsh, so lawmakers added something to the Texas Constitution (Article 16 § 26, specifically) that says heirs of the body can sue when their loved one was killed through a grossly negligent act. What that meant is that they introduced an early prototype version of wrongful death law, before wrongful death law became popular and widely accepted in all 50 states.
Article 16 - General Provisions
Section 26 - HOMICIDE; LIABILITY IN DAMAGES
Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.Texas Constitution
Since this right is baked into the Texas Constitution—and not just a regular statute passed by our legislature—that means that when they passed the most modern version of Texas' workers' compensation law, even though the politicians who passed that law wanted to make it so you could never sue any employer for a workplace injury or fatality, they couldn't override the Texas Constitution. Even when the employer participates in the workers' compensation program, the family of a deceased worker can still sue when the employer was grossly negligent.
How Does a Gross Negligence Wrongful Death Lawsuit Work?
Let's be clear here. This is not a normal wrongful death lawsuit. This is a lawsuit specifically to recover punitive damages—or damages designed to punish wrongdoers—on the basis that the employer was grossly negligent.
How does gross negligence differ from ordinary negligence? Let us explain. In an ordinary wrongful death case, you just have to show that the other person engaged in an act of carelessness that caused your loved one's death. Gross negligence is far more than carelessness. It usually means that the person has knowledge that what they're doing could hurt someone, but they choose to do it anyway, rather than simply taking their eye off the ball.
Example #1: A Fist-Fight Leads to a Worker's Death and a Cover-Up
We had a case a couple of years ago that involved a worker who fell 60 feet, to his death, while working on a crane-like platform. According to his co-workers, the man fell when the platform he was standing on inexplicably pitched forward. The way they told the story, the deceased worker simply forgot to properly attach his safety harness to the crane. In their words, he caused his own death.
Something didn't smell right, because each of the co-workers told us exactly the same story, almost word for word. When you've litigated wrongful death work injury cases as long as we have, you know that no two people ever describe the same event exactly the same way. When they do, it's likely they got together and agreed on a story.
Another giant red flag was that one of the workers—who was there on the day that the man died—quit his job that very day. When we tracked down and spoke with that worker, we learned the terrible truth of what actually happened.
In the minutes before the incident, the construction company's owner and the crane operator got into an argument. Before long, the argument escalated into a full-blown fistfight. During that fight, someone hit the controls on the crane, causing the platform to pitch forward, and sending the worker on the platform tumbling 60 feet to the ground. Co-workers rushed over to the man, who at that time, was severely injured, but not deceased.
Did they call for help? Did they get medical attention on the scene ASAP, in order to save their co-worker's life? Nope. The company's owner panicked because he realized that he never provided a safety harness to the deceased man, as required by work safety regulations. Rather than helping his injured employee, and accepting the consequences of his dangerous decision, he left the dying man to his fate, went into town, and bought a safety harness from a pawn shop. He returned to the scene and proceeded to put the safety harness on the now-deceased worker's body, just to cover his tracks.
It turns out, the guy who "quit" his job was actually fired. After placing the safety harness on the deceased man, the company's owner gathered everyone at the scene and told them the story he expected them to repeat to investigators (that's why they all told the exact same story). When our witness refused to go along with the cover-up, the company's owner fired him.
We've litigated horrific workplace fatalities for decades, but we can't recall too many cases that come close to the sheer indifference to a man's life that we learned about in this case. Clearly, ownership's actions in this case went well beyond ordinary negligence.
What Is Gross Negligence and Is it More Difficult to Prove than Ordinary Negligence?
Gross negligence is an act that shocks the senses, not just a dangerous act. So, when someone loses a loved one and the employer participates in the workers' compensation program, even though you can't sue the employer under a normal wrongful death theory and recover normal damages (like loss of inheritance, loss of consortium, etc.), what you can do is file a gross negligence claim against them, and attempt to recover punitive damages. This is in addition to the workers' compensation death benefits that you receive.
Is it hard to prove that the employer was grossly negligent? Yeah, it's tough, but you'd be surprised at how often it happens. We've seen a shocking variety of employer negligence and we've had many instances in the past where what at first appeared to be ordinary negligence turned out to be gross negligence when we dug into it further.
Example #2: A Case that Shows Why You Should Always Consider the Possibility of Gross Negligence
For example, we represented the family of a factory worker who was killed when she was pulled into a conveyor system and crushed to death. At first, it appeared to be a tragic accident, where the woman just got a little too close to the machine, and maybe the company should have had a little better setup.
We later found out that management knew that the underside of this particular machine was exposed, meaning anyone who got too close to the machine could get caught in it. They weighed whether or not they should install a metal grate on the front of the machine, so an employee couldn't accidentally reach into the machine, but they ultimately decided that it was cost-prohibitive to install a metal grate because it would cost the company a couple hundred hundred thousand dollars.
There, management knew of the risk, they accepted that eventually some employee was going to get killed, and assessed that they could probably just pay workers' comp. premiums to offset the risk, and at the end of the day, they chose not to install a basic safety feature. That's an example of what may at first glance look like ordinary negligence but actually is gross negligence.
The general rule of thumb is, if your loved one's employer participates in the workers' compensation program, and your loved one dies on the job, a lawyer should at least look into the possibility of a gross negligence case.
Who Can File a Gross Negligence Workers' Compensation Case?
This part gets a little tricky. In a normal wrongful death case, Texas statutory law says that a deceased person's spouse, parents, and children all have standing to file a wrongful death lawsuit. But again, a gross negligence workers' compensation case is not an ordinary wrongful death claim. It's instead, based on the provision of the Texas Constitution that we mentioned earlier, which says heirs of the body can sue when a loved one dies due to gross negligence.
What is an heir of the body? An heir of the body is not all family members. It refers only to the spouse and children of a deceased person. So parents cannot sue in a gross negligence workers' comp. scenario, but a spouse and children can.
Chapter 4: Texas Non-Subscriber Fatal Work Accident Law
As we've covered above, not every company in Texas participates in the workers' compensation program. In fact, some of the largest companies in Texas—Wal-Mart, Lowe's, Pilgrim's Pride, and many others—opt out of the Texas workers' compensation program. This means they are what we call non-subscribers. A non-subscriber is an employer who does not subscribe (participate) in the workers' compensation program.
The effect of this—seemingly minor difference—is huge. When a company opts out of the workers' compensation program, it means that the families of workers killed on the job do not get automatic, guaranteed benefits. However, it also means that they retain the right to sue their loved one's employer.
Let me reiterate, when a company participates in the workers' compensation program, the family of the deceased worker gets guaranteed benefits, but the benefits are fairly insignificant. When a company is a non-subscriber and a worker is killed, the deceased worker's family can swing for the fences and file an ordinary wrongful death negligence suit against the employer, the results of which can be astounding.
How Does a Non-Subscriber Workplace Fatality Case Work?
Here's how a non-subscriber workplace fatality case plays out:
- Step 1: An accident occurs and an employee dies.
- Step 2: The family hires an attorney.
- Step 3: The attorney investigates. The investigation must be thorough. Let me give you an example of what one of our investigations looks like. We had a case where an employee was pulled into a vat of grain and was suffocated. We hired a former Occupational Safety and Health Administration (OSHA) director to go out and perform a site inspection. This was after we issued legal paperwork to have the plant shut down so that the evidence would be preserved. We then coordinated with the company's lawyers for this inspection to take place. The site inspection occurred, which involved laser mapping the scene, our expert's review of the lockout/tagout procedures for the machinery, a review of all of the worker's safety issue logs, etc.
- Step 4: Discovery—After the initial investigation, we went through a process called discovery, where we used the court's authority to make the defendants provide us with documentation. We learned all about the company's hiring practices, training procedures, internal safety records, and other matters relating to worker safety. At this point, we started to uncover how such an accident could have occurred. We also discovered that similar actions occurred in the past, but the employer learned nothing from those close calls and took no remedial measures to ensure it wouldn't happen again. Once all of this information was together, we started taking depositions of the company officers, safety managers, supervisors, and hiring managers. Ultimately, we pinpointed our theories of liability.
- Step 5: Mediation—The defendants then asked us to mediate the case. We sat down with the mediator, presented all of our findings, and, in the end, the company settled with our client for a substantial amount of money.
That process, which we just described, is how a non-subscriber work injury case should be handled. However, let's take a minute to talk about how non-subscriber employers try to pull the wool over the eyes of a deceased worker's family.
Sometimes Non-Subscribers Pretend to Have Workers' Comp.
Often when an employer is a non-subscriber and a worker is killed on the job, the employer will pretend as if the company participates in the workers' compensation program. The impression they're trying to create is "We can't be sued." They will make an offer to settle with the victim's family and will call that settlement workers' compensation.
But, as we have harped on over and over again, workers' compensation isn't a generic label that means "any money paid to an injured worker." Rather, it is the name of the official work injury program that employers can choose to participate in. So, when the employer is a non-subscriber, whatever money they're bringing to the table (irrespective of how they choose to label it) is the opposite of workers' compensation. It is in fact a settlement offer based on their fault, NOT a no-fault offering of injury benefits.
So, what they are doing is trying to offer a settlement. They're just framing it in technical jargon to confuse you, hoping you don't realize that they can be sued.
Sometimes Non-Subscribers Offer Voluntary Benefits
There's another layer to it that we haven't yet discussed: voluntary benefit plans.
When an employer is a non-subscriber, Texas law does not require them to offer any benefits at all. Instead, an injured worker reserves the right to sue the employer, and as far as the lawmakers are concerned, that's all the remedy an injured worker needs.
Now, some employers choose to provide benefits to their workers even when they don't have to.
But why? Some argue that employers do this to be generous. Company A opts out of the workers' compensation program to avoid the cost, yet they don't want to leave their injured workers without any benefits. So, they develop their own benefit plan and promise to cover things like medical bills or short stints of lost wages due to an injury. In other words, Company A chooses to be nice and offer benefits that they aren't required by law to offer.
We look at it from a more cynical perspective. Based on what we've seen, employers that voluntarily offer a benefit plan aren't doing it to be nice. Rather, they do it to mitigate costs. They're worried that a doctor in the workers' comp system will say that an employee with a muscle pull should be off work for three months. But if the company opts out of the workers' compensation system and instead creates its own network of doctors, the docs it sends injured workers to will say that a muscle pull is no big deal, and the injured worker only needs a couple of days off.
It's fairly clever, if you stop to think about it. The employer avoids the expense of participating in the workers' comp. program, which costs a fortune. But as a non-subscriber, they're open to lawsuits by injured workers. "No problem," the company thinks. "We'll just create our own pretend benefit plan and will control the parameters such that workers think we're helping them, but ultimately we have complete control over what is and isn't paid for."
So far, that all concerns work injuries. How does it work with respect to workplace fatalities?
Often baked into a company's voluntarily-provided benefit plan is a provision that says the company will pay a predetermined amount of death benefits in the event of a workplace fatality. Typically, this amount is a low-to-mid six-figure amount. $400,000 is pretty standard.
Where things get somewhat diabolical is an employer will be a non-subscriber, meaning the family of a deceased worker can sue the company for millions, but the employer will take the approach of, "Listen, our workers' compensation plan will pay $500,000. Sign right here, and we'll get you the money." The family of the deceased worker will reasonably assume that $500,000 is all they're entitled to by law. But if they take that money, what actually happened is they agreed to settle for $500,000 in a case that could have been worth many times more than what was offered.
For a very specific example, consider a case we had against a major poultry producer. A couple of years back, we had a case against this company, where a worker was run over and killed by an 18-wheeler on their loading dock. The company approached the family and said that they would be willing to settle with them, per the terms of their employment agreement with the employee, for $500,000. This would be $500,000, no questions asked, with the employer paying the money in exchange for the family's signature on a release that said the family wouldn't sue the company and that the company did nothing wrong.
The company's representatives threw around terms like "workers' comp." to give the family the impression that they didn't have the right to sue. Fortunately, the employee's family had a friend that knew better. The friend suggested they contact an attorney. The family did a Google search for "best workplace fatality lawyer in Texas" and found us. When they called us, we were able to immediately see what was going on and informed them that they did, in fact, have the right to sue. After some more conversations, the family decided that we were the right fit for their case. We ultimately settled their case for about five times more than what the employer had offered them.
So here's the main takeaway; When an employer shows up and says there's a benefit plan and the family can get this, they're in all likelihood trying to pull a fast one. If an employee is killed on the job, while working for a non-subscriber, in almost any scenario, the employer can be held liable for it and they can be held liable for full damages. What do those damages include? Here's what you can sue for:
- Loss of decedent's earning capacity
- Loss of advice and counsel
- Loss of services
- Expenses related to psychological treatment
- Funeral expenses
- Mental Anguish
- Loss of companionship and society
- Loss of inheritance
- Exemplary damages (only in cases of gross negligence)
Now, we mentioned earlier that in almost any fatal work accident case, where the employer is a non-subscriber, the employer can be held liable. Why is that? It is because in a non-subscriber work injury case any liability on the employer means that they have to pay for all of the damages. That's unusual. Most personal injury and wrongful death cases don't work that way. In other cases, a person who you sue is only liable for the percentage fault that a jury puts on them, but in a non-subscriber case, if a jury says that an employer is even 1% liable, then the employer is responsible for all of the damages.
The main thing you need to know is that if a loved one is killed on the job, you shouldn't make the mistake of just assuming that an employer participates in the workers' compensation program. Talk to a lawyer to find out if they're actually a non-subscriber and can be sued in an ordinary wrongful death case.
Chapter 5: Workplace Fatalities Involving Contractors
Not all employees are bona fide employees of a company. Some are contract workers, and this can have serious legal consequences for the surviving family members. Now, the tricky part is first determining whether or not your loved one actually is a contractor or if they're actually an employee.
What do we mean by that? Isn't it as simple as seeing whether they had an employment contract or were paid on a 1099 instead of a W2? No.
For purposes of Texas work injury law, a signed employment contract does not make someone a contractor. Calling them a contractor does not make them a contractor. Tax paperwork that shows they're paid as a contractor is not what makes them a contractor. What makes a worker a contractor is the nature of the interaction between the employer and the worker. Period.
In Texas, the courts use a test where they consider the nature of the relationship between the employer and the worker to determine whether enough factors are present such that the worker is an employee or a contractor.
Here are some of the things courts consider when making their determination:
- Whether or not the worker provides their services for other customers or whether they work for the company exclusively.
- Whether or not the worker makes their own schedule or whether the company makes the schedule for them.
- Tax withholdings and benefit withholdings.
- Whether or not the worker controls the methods by which they accomplish their task or whether the company manages that.
- Does the worker bring their own tools and instrumentalities or does the company provide those?
The idea here is that a contractor is, for all practical purposes, their own business. They go around provide a service to a variety of customers. A good example would be someone who builds fences. They may build fences for 100 "employers" in a single year. They were never technically the employee of any of those customers. Instead, the fence builder was a contractor who was working for a customer, not an employee working for an employer.
Now imagine a landscaping company that has people working for it, and the owner of the company calls said workers "contractors." However, the owner of the company tells those workers when to show up to work, provides them with tools, provides them with customers, and the workers only work for that one employer. Here, those workers would likely be regarded by the court as employees, not contractors.
The difference is that the fence builder merely provides a service for a variety of customers, whereas the landscaper's staff work exclusively for him. The relationship between "boss" and "worker" in the first instance is fleeting and in the second instance is constant and longterm.
Why does this matter? It matters because employers owe contractors a lower standard of care than they owe employees. In other words, when we're considering whether or not a company should be liable for a worker who was injured on the job, it will weigh more heavily if the injured worker is an employee versus if they are a contractor. Employers must protect employees from basically all foreseeable harms. A contractor must only be protected from things outside of the ordinary risks associated with performing their work.
It naturally benefits a company to say that a deceased worker is a contractor rather than an employee, because it owes employees additional protection. Companies often think that they're clever and will avoid liability for injured workers simply by labeling those workers as "contractors" rather than "employees." But any lawyer worth their salt can analyze the relationship between the employer and the worker and see whether the law will regard it as a customer-contractor relationship or an employer-employee relationship.
Once we figure out if a worker actually is an employee or a contractor, then we have to go back through the same analysis of whether they were killed by an employer who participates in the workers' compensation program or were they killed by a non-subscriber. That will affect their rights and remedies.
Chapter 6: Work Fatalities Caused by Third Parties
Third-party cases are straight-up, regular wrongful death negligence cases. This scenario arises when your loved one happened to be on the job; they happened to be killed, but it's not the employer's fault or not entirely their fault. It is the fault of somebody outside of the company.
Let's go through a couple of examples:
We represented the family of a man who worked for a construction company. While on the job site, an employee for a completely different company ran over and killed him with a front-end loader. We didn't sue the employer. Rather, we sued the third party under a conventional theory of negligence and wrongful death.
We had a case where a worker for an electrical company went to a customer's facility to service the main box, when they were killed by a dangerous condition on the factory floor. Same as above. We didn't sue the electrical company the decedent worked for. Rather, we sued the customer upon whose premises the worker died.
Another example is a guy who worked as a security guard who was killed due to dangerous conditions at the facility his employer sent him to patrol.
We've also had numerous instances of truck drivers, struck and killed by other truck drivers who worked for different companies than the deceased driver. Are these on-the-job fatalities? Yes, but they're not the employer's fault. There was a third party responsible for the deaths, so we sued those third parties.
How do these cases work? They follow the same steps as a non-subscriber wrongful death case. This means the family retains an attorney, who investigates the case, files a lawsuit, and litigates the case until the matter is resolved.
Chapter 7: Frequently Asked Questions
What Role Does OSHA Play in All of This?
OSHA's job is to collect data and issue fines against employers. It is not their job to help you with your lawsuit. Any information they find that may be helpful to your lawsuit is a total coincidence and it usually takes a year and a half to two years for OSHA to complete its investigation. Your case cannot wait that long. Under no circumstances should you wait for an OSHA report to come back before you file a wrongful death lawsuit.
What Is My Family's Wrongful Death Workplace Lawsuit Worth?
For all the reasons outlined above, this is a question that is highly dependent on whether or not the employer opts into the workers' compensation program or opts out. These are rough estimates, so don't attempt to apply them to your scenario.
Generally speaking, a workplace fatality, where the employer participates in the workers' compensation program, and the family only qualifies for workers' compensation benefits will usually result in a low six-figure total payment.
A scenario where the employer participates in the workers' compensation program, but they were grossly negligent, and we sue them for punitive damages, could easily become a seven-figure recovery.
A non-subscriber workplace fatality (assuming that the employee was not under the influence or solely responsible for their injuries), in all likelihood, is a seven-figure or multi-seven-figure case and can be higher.
How Does a Binding Arbitration Agreement Affect My Family's Work Injury Wrongful Death Lawsuit?
Sometimes employers are non-subscribers and they have employees sign a binding arbitration agreement. This basically means that you can't sue the employer in an ordinary court, instead, you must sue them in a private quasi-court. Unquestionably, this adds complexity to the lawsuit, but we have been very successful in arbitration cases, and an arbitration agreement does not scare us away. It will change the strategy taken, but ultimately, this is not a prohibition on suing. You still retain the right to sue and you should talk to us about your situation in more detail.
If The Company Is Offering to Pay for Something, Should I Accept It?
As a general rule of thumb, it's okay to accept payment from the employer to cover incidentals, like funeral expenses and those types of things. But if they start talking to you about settling for any kind of significant amount, you should really speak with a lawyer first. There are so many examples of cases we can give you where clients were told, "Take this now or you'll never get another penny," or "This is our top-dollar offer," then they hired us, and we ended up getting them 4, 5, or even 6 times as much as the employer offered. You really have a lot at stake here and that's why you shouldn't make any moves without talking to a lawyer. Whatever you choose to do, don't sign anything without talking to a lawyer.
Can the Employer Trick Me into Waiving My Rights?
Absolutely. A pre-injury waiver is not enforceable under Texas law. If, on day one, as part of your loved one's hiring process, they had them sign something that says "You'll never ever sue us under any circumstances, not even in arbitration," that's probably not enforceable. But if they have you sign something after your loved one sustains an injury or death, then you can waive your right to sue, and there is very little chance of un-ringing that bell.
What Should I Do if Someone in My Family Signed a Waiver?
An attorney must review it to gauge its merit. For example, we had a case where a truck driver drove cross-country. His wife wanted to go along with him, even though she didn't work for the company. They agreed to let her tag along, provided that she signed something saying that she would never sue the company, nor would her heirs.
Eventually, an accident occurred that was caused by the company, and the woman died. Her adult children wanted to sue. They were told that they couldn't because she signed that document. We took one look at the document, realized it was defective, and we were able to sue, successfully resolving their case for several million dollars.
What Should I Do if I'm Not Sure Who to Blame?
Our job is to investigate and tell you if someone is to blame. If it turns out that no one is to blame, we'll tell you that and we'll encourage you to drop any kind of case. We're not going to lead you on a wild goose chase. But it is highly common that clients hire us on a hunch that their loved one's death was wrongful but they don't really know what happened. We look into it and find a clear error that occurred.
How Long Do I Have to File Suit?
If you have the type of workplace fatality case where filing suit is an option, as a general rule, you have two years from the date of the incident.
Who Can File Suit in a Texas Workplace Fatality Case?
The spouse, parents, and children of the deceased can file suit.
Do I Need to Be Appointed as The Executor of My Loved One's Estate before I Can File a Lawsuit?
No, you don't. You have the right to file a workplace wrongful death lawsuit simply by virtue of being the deceased worker's spouse, parent, or child.
How Do I Find Out if My Employer Subscribes to Workers' Compensation?
You can probably tell from above that a whole lot of your rights and remedies hinge on whether or not your employer participates in the workers' compensation program or whether they opt out of the workers' compensation program.
How do you figure that out? Texas has a website where you can look that up. Here's the link, or just call us.
How Soon after My Loved One Passes Away Should I Talk to an Attorney?
This is a sensitive subject because obviously everyone needs time to grieve. But the reality is the evidence doesn't wait on anybody. You've got to get the ball moving, as soon as possible. What we generally recommend is that if there is some relative, who you trust to guide you through these sorts of things, have them make contact with us. We'll take it from there.
How Much Does Our Law Firm Charge?
Firms like ours work on a contingency fee basis. It's a very simple arrangement. You basically pay us a commission to win your case. If we don't win your case, we get paid nothing. The commission we get will be a percentage of the total recovery. What percentage do we charge? It varies depending on the case, but generally is 1/3 of any amount recovered, if we can settle without suing, or 40%, if we have to file suit.
Additionally, we front all court costs, with the understanding that we get reimbursed. If we don't win, you don't pay us for the costs.
One of My Relatives Hired a Lawyer, but They Don't Represent Me. What Should I Do?
This comes up pretty often in wrongful death cases. Generally speaking, spouse, parents, and children all have standing to file a lawsuit, and they can all hire their own separate lawyers. The best thing you can do is call us and we'll evaluate whether it makes more sense for you to hire your own lawyer or join the existing lawsuit.
Sometimes one answer is better than the other, while sometimes it's immaterial and doesn't matter which way you go. But you should at least talk to someone who knows how these cases work before making that decision arbitrarily.
How Much Do You Charge for a Consultation?
$0. Call us and we'll be happy to discuss your situation.
How Experienced Is Grossman Law Offices at Handling These Cases?
We've been doing this for 30+ years. In that time, we've helped thousands of families in fatality cases.
Do I Need a Lawyer or Is This Something I Can Handle on My Own?
If you can read everything above, it makes perfect sense to you, and you know where to go to research the law, then maybe you don't need a lawyer. If there's anything above that you're not intimately familiar with, then yes, you need a lawyer. This is the most complex area of Texas personal injury law. Period. End of story.
With that being said, a lawyer should be able to tell you exactly what they're going to do for you. A lawyer should never say, "Trust me, this is hard. Let me handle it." Call them. Talk to them. Discuss the game plan. If you think they can solve the problem, then hire them. If you don't, find someone who can.
Will My Case Be Publicized?
Any time you file a lawsuit, it's technically a matter of public record. That said, the general public doesn't know where the courthouse is, much less how to look at those records. Practically speaking, even though anyone can go down and look at the documents, they usually don't. In most cases, your privacy isn't invaded.
Our law firm does not seek publicity for our client's cases. We are often contacted by the news and we generally refrain from providing them with information. Sometimes the news will take an interest in a case and talk about it, but we typically do not participate, unless the client wants us to do so in their particular case.
How Do You Pick the Right Lawyer for Your Case?
The best answer to that question has nothing to do with the law. It has nothing to do with a lawyer's accomplishments. You have to like your attorneys and we encourage everyone to talk to a handful of lawyers. What we think you'll quickly find is that some lawyers will not give you the time of day. You can have the case of the century; they could want to make money off your case, but they don't care about you as a human being. They just say, "Yeah, I'll send you the form. Fill it out. There you go." It's like talking to the DMV.
That should never be how the lawyer-client relationship exists, in our opinion. We believe in a hands-on approach. Clients get our cell phone numbers and we're available to talk to them, whenever they need to talk. It's as simple as that. And so if you agree with that philosophy, then maybe we're the right folks for you, but there's only one way to find out—you have to talk to us and see if we hit it off. If you can't feel some sort of report being built, then it's probably not the right fit.
Where Is Grossman Law Offices Located?
Our office is in Dallas, TX. Call us at (214) 220-9191, and we can speak over the phone or arrange a time for you to come to the office for a consultation.