Workers’ compensation is designed to provide financial benefits to an employee who is injured or killed in a workplace accident. This includes compensation to his or her dependents if the worker gets killed.
However, the workers’ compensation system also protects employers from getting sued for any work-related injuries or deaths even if the employer was careless or contributed to a dangerous work environment. Workers and their family members give up their right to sue their loved one’s employer for additional intangible losses related to loss of quality of life or loss of partnership.
Employers are still protected from lawsuits even if they violated safety protocols established by the Occupational Safety and Health Administration (OSHA). This is because workers’ compensation is a no-fault system. Victims or their loved ones are entitled to benefits if the injury occurred during the regular course of the employee’s job, no matter who was at fault. Benefits could include payment for medical expenses and wage replacement for temporary and partial disabilities.
You could be entitled to [death benefits](https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=LAB&division=4.&title=&part=2.&chapter=2.&article=4.) if you were totally or partially dependent on the deceased employee for financial support at the time of the accident. Total or partial dependents could include:
Under the law, certain family members automatically qualify as total dependents of the employee:
If you fall into any of the categories listed above, a workers’ compensation insurance company may have to pay for reasonable burial expenses and provide you (and all other dependents) with death benefits.
These are the benefit amounts based on the number of eligible dependents:
Partial dependents can also receive death benefits if there are no total dependents or if only one total dependent is involved.
A skilled wrongful death attorney can help determine the full value of your claim.
Death benefits are typically paid in installments and paid at the same rate as the deceased employee’s temporary disability rate, but not less than $224 per week. The temporary disability rate is two-thirds of the employee’s average weekly earnings.
However, minor children will continue to receive benefits at the temporary disability rate until the youngest child reaches 18 years of age. For example, if the employee’s temporary disability rate was $900 a week, and he had a spouse and five-year-old child, both the spouse and child will receive $900 a week until the total reaches $290,000. This means it will take about seven years and the child will only be 12 years old. The child can still receive benefits for another six years at $900 a week until he or she turns 18.
You have one year from the date of your loved one’s death to file for death benefits. The employer’s workers’ compensation insurance company will conduct a detailed investigation of your claim to examine the cause of your loved one’s injury and death.
The claims administrator is required by law to make a decision on your claim within a reasonable amount of time. If you do not receive a denial letter within 90 days of filing your claim, you can assume your claim has been approved.
However, your loved one’s employer or its workers’ compensation insurance company may allege that your loved one’s death was not caused by a work-related accident. They may use this as reason to deny your claim and avoid paying out death benefits. If this happens, our lawyers can help you appeal the denial, guiding you through each step of the process.
You do not have to go through the complex workers’ compensation process on your own following your loved one’s death. If you need assistance filing a claim or appealing a denial, our wrongful death lawyers at Berry, Smith & Bartell have the knowledge and legal experience to assist you and fight for your best interests.
Surviving family members cannot sue the employer over a workplace accident. However, surviving family members may be able to file a wrongful death lawsuit if their loved one’s death was caused by a third party.
To file a wrongful death lawsuit, you must prove that your loved one died on the job due to a third party’s negligence. Third parties who may be held liable can include:
You must have also suffered harm as a result of your loved one’s death. This can be in the form of damages such as lost wages or lost earning capacity and/or intangible losses such as loss of quality of life, loss of companionship, and pain and suffering.
Compensation for intangible losses is what makes wrongful death claims different than workers’ compensation claims. A wrongful death lawyer in Fresno can determine if you are eligible to file a lawsuit on your loved one’s behalf and help you hold any negligent third parties accountable.
In California, only certain people are allowed to file a wrongful death lawsuit. These include the deceased employee’s surviving spouse, domestic partner or children. If there is no surviving person, then a wrongful death lawsuit may be filed by anyone entitled to the deceased employee’s property or estate. This can include a deceased employee’s parents or siblings depending on who was living with him or her at the time of death.
For surviving family members, the damages available in a wrongful death claim can include:
Our Bakersfield wrongful death attorneys can work to help you receive the full value of your claim.
A statute of limitations requires lawsuits to be brought within a certain period of time. In California, you must file a wrongful death lawsuit within two years from the date of your loved one’s death. If you fail to file by this deadline, you will lose the right to do so.
However, an important exception to this statute is the discovery rule. This applies in cases where it would not have been expected for a reasonable person to know there were grounds for a lawsuit. For example, maybe a reasonable person would not have realized a third party was involved in the workplace death. However, once you know there are grounds for a lawsuit, you must file a lawsuit within one year.
A wrongful death lawyer can help you understand this and other exceptions to the statute of limitations. We can also guide you through the entire legal process, advocating for your best interest.