Can You Sue for Wrongful Death If There’s Workers’ Comp?

Workers’ compensation provides death benefits for workplace fatalities, but these benefits rarely reflect the true value of your loss. Understanding when you can pursue additional wrongful death claims despite workers’ comp is crucial for maximizing your family’s recovery.

At Atlanta Auto Law, our wrongful death attorneys help families navigate the complex intersection of workers’ compensation and wrongful death law, identifying every avenue for recovery beyond limited workers’ comp benefits.

Understanding Workers’ Comp Death Benefits

Georgia Workers’ Comp Death Benefits

Workers’ compensation provides limited benefits for workplace deaths:

• Weekly benefits: 2/3 of average weekly wage (max $675/week as of 2023)
• Duration: 400 weeks maximum (about 7.7 years)
• Funeral expenses: Up to $7,500
• Total maximum: Approximately $270,000 plus funeral costs
• No pain and suffering: Only economic support provided

Who Receives Workers’ Comp Death Benefits

1. Surviving spouse: Until remarriage or death
2. Children: Until age 18 (22 if in school)
3. Other dependents: If wholly dependent on deceased
4. Next of kin: If no dependents exist

The Exclusive Remedy Rule and Its Limits

What Is the Exclusive Remedy Rule?

Georgia’s workers’ compensation law generally makes workers’ comp the “exclusive remedy” against employers for workplace deaths. This means:

• Cannot sue employer for negligence
• Cannot seek pain and suffering damages
• Cannot pursue punitive damages
• Limited to workers’ comp benefits

Important Limitations

The exclusive remedy ONLY protects:

• The direct employer: Not contractors or other companies
• Covered employees: Some workers excluded
• Accidents: Not intentional acts
• Insured employers: Uninsured employers can be sued

Third-Party Wrongful Death Claims

The most common path to full compensation involves suing third parties who contributed to the death:

Equipment and Product Manufacturers

• Defective machinery: Faulty safety guards, controls
• Tool failures: Breaking saws, drills, equipment
• Vehicle defects: Forklift, crane malfunctions
• Safety equipment: Failed harnesses, helmets
• Chemical products: Toxic exposures, explosions

Contractors and Subcontractors

• General contractors: Site safety responsibility
• Subcontractors: Creating dangerous conditions
• Staffing agencies: Temporary worker deaths
• Property owners: Premises liability
• Architects/engineers: Design defects

Motor Vehicle Related Deaths

Work-related car accidents often involve third parties:

• Other drivers: At-fault in work-related crashes
• Vehicle owners: Negligent entrustment
• Maintenance companies: Brake failures, tire blowouts
• Trucking companies: Commercial vehicle crashes
• Government entities: Dangerous road conditions

Exceptions Allowing Suits Against Employers

1. Intentional Acts Exception

Employers lose immunity for deliberate harm:

• Assault by employer: Physical violence causing death
• Deliberate safety violations: Knowingly creating death traps
• Removing safety equipment: To increase production
• Ordering dangerous acts: Despite known death risk
• Criminal acts: Homicide, manslaughter charges

2. Dual Capacity Doctrine

When employer has second relationship with employee:

• Manufacturer of products: Employee uses employer’s products
• Property owner: Premises liability separate from employment
• Medical provider: Company doctor malpractice
• Service provider: Selling services to employees

3. No Workers’ Comp Insurance

Uninsured employers face full liability:

• Complete wrongful death suit allowed
• No exclusive remedy protection
• Personal assets at risk
• Criminal penalties possible
• Full damages available

4. Independent Contractor Misclassification

If employer misclassified employee as contractor:

• No workers’ comp coverage exists
• Full wrongful death claim possible
• Employer penalties for misclassification
• Personal liability for company officers

Combining Workers’ Comp with Third-Party Claims

How Dual Recovery Works

1. Receive workers’ comp benefits immediately
2. File third-party wrongful death suit
3. Recover full damages from third party
4. Workers’ comp gets reimbursed (subrogation)
5. Family keeps remaining recovery

Example: Construction Worker Death

• Workers’ comp pays: $270,000
• Third-party suit recovers: $2 million
• Workers’ comp reimbursed: $270,000
• Family net recovery: $1.73 million

Common Workplace Death Scenarios

Construction Site Deaths

Multiple third parties often liable:

• Falls from height: Scaffold manufacturers, contractors
• Electrocutions: Utility companies, electricians
• Struck by objects: Crane operators, riggers
• Caught between: Equipment manufacturers
• Trench collapse: Engineers, excavation companies

Industrial Accidents

• Machine guards removed: Intentional act exception
• Chemical exposures: Product manufacturer liability
• Explosions: Multiple third parties
• Confined spaces: Safety equipment failures

Transportation Workers

• Delivery drivers: Other motorist liability
• Truck drivers: Vehicle defects, road hazards
• Sales representatives: Travel-related deaths
• Service technicians: Customer premises liability

Proving Employer Liability Exceptions

Evidence for Intentional Acts

• Prior violations: OSHA citations, safety records
• Employee complaints: Documented safety concerns
• Witness testimony: Ordered to work unsafely
• Video evidence: Removing safety devices
• Internal communications: Emails showing knowledge

Substantially Certain Standard

Georgia requires showing employer knew death was “substantially certain”:

• Not just possible or probable
• Virtual certainty of death/injury
• Conscious disregard of consequence
• Higher than gross negligence

Strategic Considerations

Timing Issues

• Workers’ comp deadline: 1 year from death
• Wrongful death deadline: 2 years from death
• Third-party claims: Various deadlines apply
• Government claims: 6-12 month notice required

Coordination Benefits

• Immediate income: Workers’ comp pays quickly
• Medical bills covered: No out-of-pocket costs
• Pursue larger recovery: While receiving benefits
• No risk: Keep workers’ comp if third-party fails

OSHA Violations and Wrongful Death

OSHA violations strengthen wrongful death claims:

• Willful violations: Support intentional act claims
• Repeat violations: Show conscious disregard
• Serious violations: Establish negligence
• Criminal referrals: Potential employer prosecution

Frequently Asked Questions

Can we receive both workers’ comp and wrongful death damages?

Yes, but workers’ comp will be reimbursed from any third-party recovery through subrogation. You keep the excess, which often far exceeds workers’ comp limits.

What if employer pressures us not to sue third parties?

Employers cannot prevent third-party suits. Any retaliation against family members who are employees could violate law. Consult an attorney immediately.

Does accepting workers’ comp prevent other claims?

No. Accepting workers’ comp doesn’t waive rights against third parties or employer exceptions. You can pursue both simultaneously.

Pursue Full Compensation for Workplace Deaths

Workers’ compensation death benefits rarely reflect the true value of your loss. Understanding and pursuing additional claims through third parties or employer exceptions can mean the difference between minimal benefits and millions in rightful compensation.

Contact Atlanta Auto Law today to explore all recovery options beyond workers’ compensation. Our experienced attorneys will identify every liable party, pursue maximum compensation, and ensure your family receives far more than limited workers’ comp benefits alone.

Related Resources:

• Insurance Coverage for Wrongful Death
• Multiple Defendants in Wrongful Death
• Calculating Full Wrongful Death Damages
• Commercial Vehicle Workplace Deaths