Work-related death: Legal options for surviving relatives in Texas

The legal remedies for a surviving spouse and other family members depends largely on whether the employer carried workers’ compensation coverage.

Because workers' compensation is optional for Texas employers and because of another unique provision in state law, the legal remedies for surviving loved ones of an employee who suffered a work-related death are more complex than in most other states. It is important to seek legal advice as soon as possible to understand what is available in the particular circumstances and so as not to miss any filing deadlines.

Deceased employee not covered by workers' compensation

If the employer chose not to obtain workers' compensation insurance coverage, which is allowed uniquely in Texas, the survivors of an employee who died in the course of employment from an injury, accident or occupational disease will not be eligible for workers' compensation death benefits. However, they may file a wrongful death lawsuit if the employer caused the death, whether through negligence, gross negligence or an intentional act.

In the wrongful death suit, surviving loved ones may be able to recover compensatory damages for lost wages, mental anguish, pain and suffering of the deceased before they died, loss of companionship, funeral expenses and more. Significantly, in a wrongful death case the plaintiffs may be awarded punitive damages, which are meant to punish the defendant for egregious behavior and to deter others from similar behavior.

Deceased worker covered by workers' compensation

If the deceased employee's employer had workers' compensation coverage, the surviving loved ones may be eligible for workers' compensation death benefits. These consist of ongoing payments at the rate of 75% of the deceased's average weekly wage. The duration of the payments varies depending on the recipient's relationship with the deceased, whether they were dependent on the worker and other specific factors.

The benefit also includes burial expenses up to $10,000 payable to the person who paid them.

Normally, workers' compensation is the "exclusive remedy" for compensation for a work-related injury or illness. This means that the injured person could only collect workers' compensation benefits but may not file a personal injury lawsuit based on the employer's fault in causing the harm.

Texas has a special exception to the exclusive remedy for death claims. In addition to workers' compensation death benefits, the surviving spouse and other heirs can file a wrongful death suit, which may allow them to collect punitive damages, which of course are not available as part of workers' compensation death benefits