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Can I File a Wrongful Death Claim if I Accepted a Workers’ Compensation Settlement?

For most types of workplace injuries, including fatal accidents, workers’ compensation is the exclusive remedy for the injured party and a surviving spouse. However, where the right to sue exists, accepting a workers’ compensation settlement will not bar a lawsuit to pursue full compensation. Here’s how it works.

Workers’ compensation is a two-way street: the employer promises to insure workers against injuries, including injuries they cause through their own negligence, and workers agree not to sue the employer for negligence when they get hurt. So, in the normal course of a workers’ compensation claim, the injured worker or the surviving spouse of a worker killed on the job receives benefits from the employer’s insurance policy.

However, there are narrow exceptions to the exclusive remedy rule. For example, if an employer does something to harm a worker intentionally, the worker can file a personal injury lawsuit. Also, if a third party with whom the injured worker has neither an employer-employee or co-worker relationship accidentally injures the worker, the worker can sue that third party.

So, on the one hand, if the facts of the case indicate workers’ compensation is the exclusive remedy, a surviving spouse is barred from suing for wrongful death, even before reaching a workers’ compensation settlement. On the other hand, if the facts support a third party lawsuit or an intentional injury lawsuit, the surviving spouse can purse that action even after reaching a workers’ comp settlement.

A wrongful death lawsuit has advantages over a workers’ comp settlement, because the plaintiff can collect damages such as pain and suffering and the loss of full earnings. Workers’ comp only pays for two-thirds of a party’s lost wages and pays nothing for pain and suffering.  However, a plaintiff cannot collect the same compensation twice. If a surviving spouse recovers the full amount of lost wages in a wrongful death lawsuit, the workers’ comp insurance company will file a claim for reimbursement of its settlement.

If you have lost a loved one in a fatal workplace accident, the wrongful death attorneys at Largey Law may be able to help. Whether we file a wrongful death action or pursue a workers’ compensation settlement on your behalf, you can trust us to fight aggressively for justice. To schedule an appointment, call 352.508.1485 or contact our office online.

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