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Workers’ Compensation typically sees victims file Claim Petitions before a Workers’ Comp Judge to get the benefits they deserve after their employer denies their initial claim. When the worker is killed in an accident, their family files the Claim Petition instead.

When a worker is killed in a deadly accident, their family files a Claim Petition to get benefits. Those benefits still cover the end-of-life medical care, but there are no ongoing medical costs like there might be in a disability case. The family also receives wage-loss benefits, and a payment is made for burial/funeral costs.

For help with your case, call Cardamone Law’s Certified Pennsylvania Workers’ Compensation Lawyers at (267) 651-7945.

Who Files a Claim Petition for a Fatal Work Injury?

The surviving family members who are entitled to get benefits are the ones who file the Claim Petition in a fatal injury case.

As explained below, various people might be entitled to receive benefits, but the right to file stays with the closest relatives and only passes to others if there is no closer relative:

The spouse
The children (who file through the spouse or their other guardians)
Dependent parents (if there are no children or spouse)
Dependent siblings (if there are no children, spouse, or parents).

What Accidents Qualify for a Fatal Work Injury Claim?

The family can file a Claim Petition if the accident that killed their loved one was work-related.

Common Accidents

This typically includes things like the following:

Fires
Explosions
Building and structural collapses
Crane and construction accidents
Chemical spills
Car accidents.

Car accidents might not qualify as “work-related” if it happened during the worker’s morning/evening commute, but other deadly accident claims can be filed instead, in those cases.

Delays

Sometimes death occurs after some delay. The death must occur within 300 weeks of the exposure or accident to qualify as “work-related” for Workers’ Comp.

How Long Do You Have to File a Claim?

Deadly work injury claims typically need to be filed within these deadlines:

3 years for deadly accidents
For death from diseases, 3 years from the death if death occurred within 300 weeks of the last date of employment/last exposure at work.

Lawsuits filed outside of Workers’ Comp must be filed within 2 years of the death.

Medical Bills

When a worker is injured or killed while performing work tasks, the employer is responsible for all medical expenses. This includes their end-of-life care in fatal injury cases.

Wage-Loss Benefits

When the worker dies, their family gets their wage-loss benefits as though the worker was getting total disability payments for the rest of their working life.

The rate is based on their pre-injury wages, but the actual percentage varies depending on the number of people those wages will support. There is also a cap at the statewide average weekly wage and a floor of half that value.

With No Surviving Spouse

One child: 32%
Two children: 42%
Three children: 52%
Four children: 62%
Five children: 64%
Six or more children: 66 2/3%

Each child gets an equal share if these benefits are divided because the children have different guardians.

With a Spouse and No Children

The spouse gets 50%.

With a Spouse Who is the Guardian of All Children

One child: 60%
Two or more children: 66 2/3%

With a Spouse Who is Not the Guardian of All Children

One child: 60%, divided equally between the spouse and the child’s guardian
Two children: 66 2/3%, with 1/3 to the spouse and 2/3 divided equally among the children’s various guardians

With No Spouse or Children

The parents get 32% if they were in part dependent on the worker, or 52% if they were totally dependent on the worker.

With No Spouse, Children, or Parents

Any siblings dependent on the worker get

22% for one sibling
27% for two siblings
32% for three or more siblings

Funeral and Burial Expenses

Workers’ Comp pays “reasonable” costs of burial up to $7,000. Usually, the cost actually charged is considered “reasonable,” but additional costs (like funerals) might not be included in that amount.

This money is paid directly to the undertaker, so the number of dependents or family members doesn’t change this payment.

Wrongful Death Lawsuits

When a family member dies, the rest of the family is often allowed to sue the person who caused their wrongful death. You cannot typically sue an employer for a work-related death, but you can sue a responsible third party, even if you also file a Workers’ Comp fatal injury claim.

This actually involves two claims:

Wrongful Death

The wrongful death claim compensates the surviving family members for their harm related to the death. It is filed by the spouse, children, or parents of the deceased and pays for…

Lost support
Lost household services
Lost companionship
Reasonable burial/funeral costs
Grief
And other damages.

Survival Action

If the victim would have lived, they’d have been entitled to a personal injury lawsuit against a third party for their accident. This right to sue survives them and passes to their estate.

The personal representative/executor of their estate can file this lawsuit to recover pre-death damages:

End-of-life medical care
Pre-death lost wages
Pre-death pain and suffering.

Overlapping Damages

Some of these damages overlap with the Workers’ Comp claim. When that happens, the employer is typically entitled to claim back the damages they paid in a process called “subrogation.”

This prevents you from getting paid twice. Workers’ Comp claims are also no-fault, so allowing the employer to get reimbursed ensures the party that was actually at fault is the one to cover the damages, instead of the innocent employer.

What Happens if a Claimant Dies While Getting Benefits for an Injury/Disability Claim?

Sometimes, rather than dying from the work injury, a worker happens to pass away from other causes while receiving Workers’ Comp benefits. Fortunately for their family, those benefits do not stop.

Other Cause of Death

If the worker dies from the work accident, then the family would get death benefits. However, if they die from some other cause, then their family can still get their original disability benefits.

Original Entitled Benefits

The family only gets the original benefits the disabled worker was entitled to under their Workers’ Comp claim. They do not get any additional benefits for the death, but can file a wrongful death lawsuit if some other, unrelated accident killed their loved one.

Rate

The wage-loss benefits are the same as what the victim would have been receiving before death. This is usually 2/3 (i.e., 66 2/3%) of their pre-injury wage, subject to a cap at the statewide average weekly wage and a floor at the lower of half that value or 90% of the worker’s pre-injury wage.

If the worker was working to some extent when they died, then the rate would have been 2/3 of the difference between their pre- and post-injury wages.

They may also get additional benefits for certain permanent amputations, lost function, facial scarring, or lost hearing/vision.

Distribution of Benefits

The benefits are paid similarly to how the death benefits are paid, except the amounts do not change. The family continues to receive the same benefits the worker would have received, distributed like this:

If there are no minor children, the victim’s spouse gets everything.
If there are minor children and a spouse, the spouse gets half, and the children split the other half.
If there are children (minor or adult) and no spouse, then the children split all of it.
If there are no spouse or children, then any other eligible dependent discussed above gets the benefits (parents or siblings), even if they are no longer a dependent because of the death.

If there are none of these heirs, then the estate or whoever is paying for the worker’s funeral gets the benefits, but only as much as you would get for funeral benefits under the death benefits section (i.e., $7,000).

The Claims Process for Fatal Claim Petitions

When a loved one dies, you should contact a Pennsylvania Workers’ Comp lawyer to discuss the claim. Typically, claims start by filing with the employer, then move on to a Claim Petition before a WCJ when the claim is denied.

Hearings

Hearings are typically held to prove that the fatal injury was work-related, which should be sufficient to prove the claim. Benefits are paid based on the pre-injury wages for a duration equal to however long the victim would have been expected to keep working until retirement age.

Evidence

These issues could require expert testimony and reports. Other evidence, like witness depositions, is also submitted.

Settling Workers’ Comp Fatal Injury Claims

Claims can be paid as ongoing benefits, which means receiving them weekly or biweekly. However, since we know the pay rate and can determine how long benefits will last, these cases are often simpler to settle.

Settlements can be paid in a lump sum or as a structured settlement. Talk to a lawyer for help calculating your settlement, and never sign anything without your lawyer reviewing it.

Judges also need to review settlements.

FAQs for Fatal Injury Claims through Workers’ Comp

Can Family Members File for Workers’ Comp for a Deadly Work Accident?

The surviving spouse, children, or perhaps parents or siblings can file a claim if their loved one died from a work-related accident. You can also continue receiving benefits if your loved one died from another cause while getting Workers’ Comp benefits.

Can You Sue Instead?

The family of a deceased worker can receive Workers’ Comp benefits and sue a third party, so long as that third party was at fault for the accident. You cannot typically sue an employer for a work-related accident.

What Benefits Do Fatal Injury Claims Pay?

Benefits are paid directly to the care providers for end-of-life medical care and directly to the undertaker for burial costs. The family receives wage-loss benefits as though the worker was disabled for the rest for their life, but the rate might vary.

How Much Are Wage-Loss Benefits for a Deadly Accident?

A totally disabled worker typically receives 66 2/3% of their pre-injury wage, subject to caps and floors. If the accident killed them instead, the surviving family receives this same rate if there is either…

A spouse and at least two children or
No spouse and at least six children.

Other family arrangements receive different rates.

There are also caps at the statewide average weekly wage and a floor at half that amount.

Do I Need a Lawyer?

Typically, Workers’ Comp claims cannot proceed without a lawyer. There is evidence to collect, which might be too expensive for a family to get on their own. Additionally, Workers’ Comp Judges typically will not approve a settlement unless you have reviewed it with a lawyer first.

What Kind of Lawyer Do I Need for a Fatal Workers’ Comp Claim?

You should choose a Workers’ Comp lawyer instead of an estates lawyer or general injury lawyer. These claims often have specific, intricate legal rules that a Certified Pennsylvania Workers’ Comp Specialist has more training and experience with than other lawyers.

Who Decides Fatal Work Injury Claims?

In Workers’ Comp cases, the Workers’ Comp Judge decides the case with no jury. If you file a wrongful death and survival case, you can have a jury decide.

Can You Appeal Workers’ Comp Claims?

If there are any legal issues or incorrect decisions from the Workers’ Comp Judge, you can appeal to the Workers’ Comp Appeal Board. From there, you can appeal further to the Commonwealth Court or potentially even the Pennsylvania Supreme Court.

Can a Spouse Recover if They Didn’t Live Together?

Spouses need to be either living with the victim at the time of death or actually dependent on them. If they were cheating on the victim at the time of death, they might not be able to recover at all, though their shared children still can recover.