It’s a valid question and one frequently asked: when a worker is killed in the course of his normal work duties, can his employer be held accountable?
Another common question: will his surviving family members be compensated for their loss?
Unfortunately, the answers to these questions don’t make sense to most people. Because employers in both Kansas and Missouri are required to carry workers’ compensation insurance, they cannot be sued for workplace injury, illness, or death. Even if the employer acted negligently and the workplace was unsafe, the employer cannot be sued for wrongful death.
However, there are survivor benefits available for family members. We explain the difference.
Wrongful Death Immunity
The workers’ compensation insurance program first emerged in the United States around the time of the Industrial Revolution. By 1920, 46 states had enacted workers’ comp legislation requiring all employers to provide the insurance to their workers. Today, every state except Texas requires employers to have workers’ comp insurance.
While it's a good thing that this insurance covers the medical expenses of employees injured at work, workers’ comp legislation also provides employers with protection against being sued for any injury that's covered by insurance. Because workers’ comp is a no-fault program, employees don't have the right to sue the employer for damages because they're covered by insurance.
This exemption also applies to wrongful death actions against an employer when a worker is killed on the job. If there are clear safety violations that led to the worker’s death, the company may be fined by the Occupational Safety and Health Administration (OSHA), but cannot be sued by the worker’s family.
Who Can Survivors Hold Responsible When Their Loved One Dies At Work?
In some cases, a workplace death is caused by faulty equipment, failed warning systems, or poor maintenance. If there's a third party—such as a manufacturer or contractor—responsible for the failure that caused the death, that party can be sued for wrongful death by the deceased’s family.
When you work with a wrongful death attorney, he will investigate this possibility as an avenue for compensation. So, although the employer cannot be sued for wrongful death, there may be other liable parties.
Worker’s Comp Does Provide Survivor Benefits
When a worker dies on the job, worker’s comp insurance will provide benefits to the employee’s survivors. These death benefits vary from state to state, and the following are guidelines from the Departments of Labor for Kansas and Missouri:
- Kansas. Surviving dependents receive weekly benefits of 67 percent of the deceased worker’s gross average weekly wage. Generally, benefits are payable to a maximum of $300,000 depending on the continued eligibility of the surviving spouse and dependent children; $40,000 of this amount is payable immediately in a lump sum. All medical and hospital expenses incurred are payable, as well as funeral expenses up to $5,000. Children of the deceased continue to receive benefits until they turn 18. If there isn't surviving spouse or dependent, $25,000 may be divided among legal heirs of the deceased. The $25,000 is paid in a lump sum, one-time payment.
- Missouri. When an employee dies as a result of the work-related accident, the survivors are entitled to a weekly benefit of approximately 66 percent of the deceased employee’s average weekly wage, subject to a maximum set by law (currently $911/week). A surviving spouse is entitled to a weekly benefit (or a share of a weekly benefit) for his or her lifetime or until he or she remarries. Upon remarriage, the surviving spouse also receives a lump sum equal to two years of benefits. A dependent child receives benefits until age 18. If the dependent child is physically or mentally incapacitated from wage earning, the weekly benefit may continue for life. The employer/insurer is also responsible for paying funeral expenses up to $5,000.
Dependents of the deceased are entitled to these benefits, no matter the cause of workplace death.
Why You Need A Lawyer
If an employer or the insurance company disputes the cause of death, surviving family members should hire an experienced worker’s comp attorney to fight for their right to benefits. A worker’s comp attorney who also handles wrongful death claims will be able to identify additional liable parties. Contact us online or call us directly at 816.471.5111 for your free consultation.