How Does Workers’ Compensation Apply?

If you ask most attorneys about the ability of an employee to sue an employer or co-employee for wrongful death, they quickly say, “No, you can’t.” They will defend that answer based on what is known as the “workers’ compensation exclusivity rule.” However, we believe that there are so many exceptions and twists to that exclusivity rule that you should speak with one of our Eason and Tambornini wrongful death attorneys before deciding it can’t be done.

One of the most significant exceptions to the exclusivity doctrine is dual capacity. In particular, was the death caused by virtue of the employer/employee relationship, or was there some other role that they were doing at the time? A similar theory of liability has to do with the concept that workers’ compensation only applies to injuries that occur in the course of employment. Was the death, something that should be considered within the course of the relationship, or was it outside the relationship?

There can also be exceptions when the employer is not correctly insured, and the death is caused by an act of aggression or another intoxicated employee. Regardless, you should never assume there cannot be a claim for wrongful death against an employer without a thorough analysis of the fact that it gave rise to the wrongful death or the surrounding requirements of the exclusivity rule.

Besides the possibility of a wrongful death lawsuit, there may be the possibility of wrongful death benefits against your employer, which is similar. One of the interesting things about the death benefits under the workers’ compensation system is that you do not have to show that the death was wrongful. Instead, you must show that the death arose out and the course of employment.

Another twist between a wrongful death lawsuit and a workers’ compensation death benefit is who can bring the claim. Under the wrongful death laws, you generally have to be a legal heir. However, in the workers’ compensation system, you do not have to be a legal heir, but rather could be an actual dependent such as a life partner, “common-law” spouse, or step-child.

If you can recover damages arising out of a wrongful death lawsuit or claim and previously received workers’ compensation death benefits, you may have some obligations under the law to reimburse the employer’s workers’ compensation carrier. However, the employer’s right to recovery is not absolute, there are many exceptions, and you might be entitled to certain credits and discounts. If you have this concern, we would be happy to have a free consultation with you to discuss the various issues you might face.

While our Eason and Tambornini wrongful death attorneys strongly believe that carrying uninsured/underinsured motorist coverage on your vehicle is a great idea, the interplay with workers’ compensation is one of the places where the coverage fails miserably.

If you drive your employer’s vehicle, it is highly unlikely that the commercial policy provides uninsured/underinsured coverage for bodily injury. While you should always confirm this language is written out of virtually all commercial policies as a cost-saving technique by employers.

Your own personal uninsured/underinsured policy would technically apply if the other driver did not have insurance or was underinsured. Unfortunately, your uninsured/underinsured motorist carrier traditionally gets a dollar-for-dollar credit for all benefits paid in the workers’ compensation system. Consequently, unless your policy was more significant than the workers’ compensation benefits, it generally will not provide you relief. It is always worth looking at, but it is usually a disappointing answer.