Worker's Comp Death claims: two claims in one?
When a worker is injured by another negligent person he can sometimes make two claims: one is a negligence claim and the other is a claim for his worker's compensation benefits. If the negligent person and the injured person work for the same company there is only one claim, for worker's compensation. So the question is: was the negligent person a fellow employee. If not a fellow employee then the injured person (or his surviving widow and kids) probably has two claims. Clearly, an employee injured by a materialman delivering materials to the job, or a materialman delivering materials who is injured due to a dangerous condition at the job can make a claim. See Adams Homes of Northwest Florida v Cranfill, 7 So.3rd 611 (Fla. 5th DCA 2009.) If an injured worker was a delivery person for for Pizza Hut and gets smacked down by a drunk driver, he can sue the drunk driver and make a claim for work comp benefits. However, when two claims are made, the injured person cannot get a double recovery. The pizza driver cannot recovery twice for the same claim, so what happens?
- he gets to file a claim against the drunk driver AND
- a claim against his worker's comp. The worker's comp company get's a lien against his case.
- If there are $25,000 in medical bills and wage losses advanced by his worker's comp carrier, then a share of the total bills paid by worker's compensation comes out of his settlement with the insurance company for the drunk driver. This right of reimbursement helps keep down the high cost of worker's comp.
There is a misunderstanding about what you can get if there are two claims, so let me explain this way. Assume the losses are as follows:
- wage losses
- medical bills
- pain and suffering
- loss of enjoyment of life
- mental anguish
Of the losses listed only items 1 and 2 are covered by worker's compensation. If it is a death case, then the survivor's get loss of support, and their pain and suffering for the loss of the loved one, plus funeral and medical bills. Worker's comp pays a max of $150,000 for a death claim.
Yesterday there was a story about a tragic accident at the site of the new Epic movie theater under construction in Palm Coast. The news reports indicate the worker who died was a welder working for a welding company out of Palatka who fell 25 feet to his death. Details were not provided. The accident is probably still under investigation by OSHA. As an example, if the deceased in that accident was negligently killed due to the fault of another trade, such as the scaffolding company or the crane operator, the deceased's family would have a wrongful death claim against them. If the accident happened because the welder was not provided with safety gear to prevent his fall, then his employer would be at fault but IMMUNE from a lawsuit if it provides worker's comp benefits.
Death benefits are part of Worker's comp. It pays $150,000 in death benefits plus up to $7,500 for funeral bills. There is a brief description about this here. That is a small price to pay for the life of a 40 year old worker. A death claim could result in a much larger recovery for his surviving family members. Because the $150,000 gets doled out over a long period of time, and is not a part of his estate, it cannot be levied against or garnished by any debtors the deceased may have had. So a bank could not go after the proceeds from the worker's comp payout to payoff a mortgage debt.
The lesson here is that there are extra legal rights in certain types of cases, including worker's comp cases. It pays to know your rights. It pays to know an experienced lawyer.
