Death on the Job: Should Loved Ones Pursue Workers’ Comp Benefits or a Wrongful Death Claim?


Accidents happen in the workplace every day. Some occupations are inherently more dangerous than others—construction work, mining, and logging are a few examples.

Children and Wrongful Death Claims for Parents

Sometimes an accident ends in tragedy when a devoted worker loses his or her life. Thankfully, California’s workers’ compensation system provides death benefits to spouses/domestic partners, children, and other eligible dependents when an employee dies on the job. These benefits are often an essential income lifeline for surviving family members—especially if the deceased employee was the family’s sole income provider.

However, what if an employee dies on the job because of an employer’s negligence? Can surviving family members file a wrongful death claim in this case? What are the differences between workers’ compensation death benefits and a wrongful death lawsuit? We’ll answer these questions ahead.

First, know this: If you lost your spouse or domestic partner to a workplace accident, at a minimum you may be entitled to workers’ compensation death benefits. Depending on the specific circumstances of your loved one’s death, you may be eligible to file a wrongful death lawsuit to recover even more.

A skilled workers’ compensation attorney can help you understand what benefits you’re entitled to and help you get the most favorable settlement possible. No amount of compensation can bring back your loved one, of course—but the payout can help you stay afloat financially. Struggling to pay the bills is that last thing anyone needs after a tragic loss.

Let’s look at workers’ compensation and wrongful death benefits in more detail.


Workers’ Comp Death Benefits vs. Wrongful Death Lawsuit

Workers’ comp is designed to provide financial benefits to a worker/employee who is injured or killed on the job, as well as their dependents.

What many people don’t realize is that workers’ comp is designed to protect employers from being sued for job-related injuries or deaths—even if the employer was negligent or contributed to a dangerous workplace environment.

This means that even if an employer violated safety standards, such as those set by the Occupational Safety and Health Administration (OSHA), they are still protected by workers’ compensation laws.

However, if the workplace death was caused by a third party, such as a general contractor, subcontractor, or negligent equipment manufacturer, the surviving family members may be able to file a wrongful death lawsuit against the third party, not the employer.

To file a wrongful death suit, surviving family members must prove that:

  • Their loved one died due to someone else’s negligence (such as a negligent equipment manufacturer).
  • The family has suffered harm because of their loved one’s death, such as lost income or earning capacity, and/or intangible losses, such as lost partnership, reduced quality of life, pain and suffering, etc.

Compensation for intangible losses is part of what sets a wrongful death claim apart—workers’ comp doesn’t provide benefits for these things.

Let’s drill down on the differences between workers’ compensation death benefits and a wrongful death lawsuit.


About Workers’ Compensation Death Benefits

California’s workers’ comp program is a no-fault system. This means surviving family members do not have to prove that the employer caused the death of their loved one due to negligence. Collecting death benefits is often as easy as filing a claim.

CA Wrongful Death Lawsuit

Yet, collecting benefits through the no-fault system also means that surviving family members give up their right to sue their loved one’s employer, and workers’ comp death benefits don’t provide compensation for intangible losses, such as reduced quality of life and loss of partnership.


How Death Benefits Are Determined

Death benefits are calculated based on how much the deceased employee earned before his or her death. Typically, death benefits equal two-thirds (66.7%) of the person’s wages, paid on a weekly basis to eligible dependents; the weekly amount for death benefits cannot be less than $224.1

Additionally, workers’ comp insurance must pay reasonable burial expenses, up to $10,000 for the deceased employee.1


Who Can File for Death Benefits?

Surviving family members who were totally or partially dependent on the deceased employee for financial support at the time of the accident/injury may be eligible for death benefits. Qualifying relatives include:1

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  • Spouses/domestic partners
  • Children (including step-children)
  • Grandchildren
  • Parents (including in-laws)
  • Siblings (including in-laws)
  • Grandparents
  • Aunts, uncles, nieces, and nephews

Some family members are automatically considered total dependents. This includes children under the age of 18, children who are unable to earn a living due to mental or physical limitations, and spouses who earned less than $30,000 in the 12-month period before the employee’s death.1

There is a cap on basic death benefits for total dependents, as follows:1

  • $250,000 for one total dependent
  • $290,000 for two total dependents (split evenly between dependents)
  • $320,00 for three or more total dependents (split evenly between dependents)

Partial dependents can also receive benefits, but how much they will receive depends on how many total dependents there are and other factors. A workers’ compensation attorney can help you understand whether partial dependents are eligible to receive death benefits.

Surviving family members have one (1) year to file a death benefits claim under the California workers’ comp system. Death benefits are paid to the surviving spouse until he or she remarries.1 Dependents are typically eligible to receive death benefits until they turn 18.1

Some employers choose to pay survivors a one-time lump sum rather than paying weekly benefits. It’s important not to rush into a settlement—consult an expert workers comp lawyer who can help ensure you’re adequately compensated by the employer.


Other Expenses

Workers’ comp must also provide surviving dependents with payment for medical expenses, temporary disability, or permanent disability that were still owed to the employee when he or she died.1


About Wrongful Death Benefits

Surviving family members can often recover much more through a wrongful death lawsuit than through workers’ compensation. Wrongful death benefits can include compensation for:

  • Medical and other injuries, plus death-related expenses incurred by the deceased person and his or her surviving family members from the moment of the negligent act until his or her death
  • Funeral and burial expenses
  • Lost wages that would have been earned by deceased person until his/her retirement
  • Loss of services, care, assistance, and other benefits provided by the deceased person
  • Other damages (such as pain and suffering)

In California, the statute of limitations to file a wrongful death suit is two (2) years from the date of the person’s death. (Note that wrongful death claims are not limited to incidents that occurred because of workplace negligence.)


Who Can File a Wrongful Death Claim?

In California, only the following individuals can file a wrongful death lawsuit:

Workers Compensation Claim Form

  • The surviving spouse.
  • The surviving domestic partner.
  • The surviving children.
  • If there is no surviving spouse/partner or children, other heirs, including the deceased person’s parents and siblings, may file suit. The deceased person’s stepchildren may also bring a lawsuit if they can prove they were financial dependents.

Others not mentioned above who are listed in the deceased person’s will cannot file a wrongful death claim, but they may be eligible to file something called a survivorship claim, which distributes benefits to everyone named in a will. An attorney can help you understand what a survivorship claim is and when it’s appropriate to file one.


Advantages & Disadvantages of Death Benefits vs. Wrongful Death Claim

There are pros and cons to filing each type of claim.

  • Workers’ Comp: One of the main advantages of filing a death benefit is that there is no requirement to prove that your loved one’s negligence contributed to his or her death; collecting benefits is as easy as filing a claim. The main disadvantage is that, by filing a claim, you forfeit your right to sue your loved one’s employer for damages; there are also no benefits for intangible losses (such as reduced quality of life or loss of life partner), and death benefits are capped at $320,000.
  • Wrongful Death Lawsuit: The main advantage of filing a wrongful death suit is the potential for greater compensation, including benefits for intangible losses; additionally, wrongful death suits that include punitive damage awards can help deter future misconduct, and there are no damage caps. The main disadvantage is that wrongful death suits can take a long time to settle—sometimes months or even years.


Why It Counts to Have an Expert Attorney by Your Side 

If you lost a loved due to a workplace accident or injury, the skilled workers’ compensation attorneys at the Law Office of Jim T. Rademacher can help you recover the most from workers’ compensation and help you understand whether a wrongful death lawsuit may be appropriate. If you’re wondering how to find a wrongful death attorney, what the elements of a wrongful death suit are, and about the cost for wrongful death attorney fees, our expert attorneys can help guide you in the right direction.

Wrongful Death

Employers are responsible for providing proper working equipment, facilities, and training to employees. When they fail to uphold these duties and a worker is fatally injured, they are also responsible for providing adequate workers’ compensation to the victim’s dependents.

Our mission at the Law Office of Jim T. Rademacher is to help surviving family members get adequate compensation and justice.


For a free case evaluation, call us today at 877-922-2889 or use our contact form.

*Fraud on workers’ compensation claims is punishable by law.