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Death in the Workplace, What Can Dependents Do? (A Virginia Lawyer's Perspective)

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By: Jerry Lutkenhaus

Unfortunately, sometimes a worker or laborer dies due to an accident at the work place. The dependents should know in Virginia there are some benefits available.

First, if a third party outside of the work place has caused the death, there is always the possibility of a personal injury action against the third party. Also, if the death was caused by a defective device or machine, then there is the possibility of a product liability action against the maker of the machine or device. In Virginia a personal injury action or product liability action has to be filed in court within two (2) years of the accident.

Second, a death at work if caused by any work factor gives the dependents the right to file a workers' compensation claim. As a Virginia Workers' Compensation Lawyer for 30 years these are some points one should know:

1. The dependents must prove they are dependents such as a wife, child or a parent in destitute circumstances in order to have a claim.

2. The successful dependent spouse can expect to receive 500 weeks of compensation and payment of burial expenses. The compensation rate is two thirds of the decedent's average weekly age. The spouse's compensation would end with a remarriage.

3. The successful dependent must prove the decedent's death had to derive from an accident arising out of and during the course of his/her employment. Thus an unexplained fall resulting in death would not be compensable even though happening at work. I had a case where a worker fell off the back of a tractor but I could never prove the reason for the fall.

4. The children would share pro rata in the compensation if under age 18 or up to age 23 if in an accredited educational institution. Of course, if a child is illegitimate, he or she would have to prove legal dependency.

5. One interesting case I had involved representing a Hong Kong child whose Chinese/American mother was killed leaving the Chinese restaurant where she had been working. The issue we litigated was whether her death was in some way linked to her employment. We settled out of court.

6. Another case involved a worker who was killed at a pumping station at midnight. Again, the issue was whether the death was linked to the employment. We also settled this case out of court.

7. Another worker died in a trench cave in. The issue in that case involved the calculation of the average weekly age since the worker died his first day on the job. Also, the employer claimed the worker was not expected to be a full-time employee. After lengthy litigation, we managed to prove a good average weekly wage in a hearing at the Commission. Of course, the higher the average weekly wage then the higher one could expect the compensation rate would be.

8. One sad case that seems to come up again and again is a death by a heart attack at work. But even though the death happened at work, it would not be compensable unless some unusual exertion triggered the heart attack.

In summary, if a worker dies at work, one should look into the possibility of both a personal injury claim and a workers' compensation claim.

Copyright© 2006, Gerald G. Lutkenhaus. ALL RIGHTS RESERVED

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Jerry Lutkenhaus is a practitioner of Workers' Compensation law in the Richmond, Virginia area for over 30 years He was given an "AV" rating by Martindale Hubbell in 2003. Lexis Nexis listed him in the 2005 Bar Register of Preeminent Attorneys. For more information, see our websites at http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com or call for a free consultation at 804-358-4766.

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