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Friday, January 20, 2017

Workplace Deaths at an 8-Year High

Workplace Deaths at an 8-Year High: When Workers' Comp is not the Sole Remedy

The Bureau of Labor Statistics recently released its annual report on work place fatalities.
The report revealed that workplace deaths have climbed to nearly 5,000 deaths. This is the highest number of workplace deaths since 2008. Workplace fatalities had been declining since hitting a peak in 2006.

Several interesting observations about the report: Men accounted for 93% of all workplace fatalities, the occupation with the highest number of deaths was truck driver (745 deaths), 903 Hispanic/Latino workers died on the job (two-thirds were foreign-born) which is the highest number from any other year, other than 2007 when the home building market was at its pre-crash high and 650 of the workplace deaths involved workers over the age
of 65.

Several factors have played a role in this decline during the last several years. First, the strengthening of government and industry safety regulations has provided workers with safer environments. Second, the economy following the crash of 2008 led to a reduction in building and manufacturing — two of the more dangerous occupations. As the economy recovers and the new President-elect promises to roll back government regulations, a likely consequence of both will be increased workplace accidents and fatalities.

Many employers carry workers’ compensation insurance in Texas. Under these plans, the employee is compensated regardless of fault and the employee’s family, in the case of death, receives partial income replacement benefits for various periods of time. The trade-off is the employee’s family cannot sue the employer for actual damages if the employee’s death was caused by negligence. This statutory immunity is granted by the Texas Labor Code.

What if a family comes to your office and their loved one has been killed on the job due to the wrong-doing of the employer, is the family limited to just workers’ compensation benefits? The answer is “Maybe Not.”
Here are the questions to ask:
  • Did the deceased employee leave a spouse and/or any children?
  • Was the death caused not just by negligence but by possibly “gross negligence” of the employer? (meaning the risk was known and the company ignored the risks despite this knowledge)
  • Is the gross negligence attributable to a vice-principal (i.e. manager/supervisor) or caused by conduct that had been ratified by the company (even implicitly) on previous occasions?
If the answer to the above three questions is “Yes” then Texas Law allows the surviving spouse and/or the children (but not the parents) of the deceased employee to sue the employer for punitive damages only. The Burden of Proof is high and the punitive damages are subject to a cap of 2 times the economic damages plus $750,000 of non-economic damages (so actual damages must be proven, even though not recoverable, for purposes of the cap calculation.)

At Miller Weisbrod, we have successfully handled dozens of cases involving the death of an employee caused by the gross negligence of the employer.

Examples of cases successfully resolved over the last year include the following fact patterns:
  • Employee killed when a house being demolished unexpectedly collapsed—the employer failed to have OSHA-mandated Engineering Survey completed prior to starting work
  • Employee’s death caused by a failure to control traffic during a highway construction project
  • Employee killed when a form fell on him at a manufacturing facility—employer failed to brace the form during maintenance activities despite warnings to do so
  • Employee’s died after a forklift carrying a wooden box being used as a work basket flipped over—the employer knew the 17 year old forklift driver had no experience and knew the practice was dangerous
  • Employee falls to his death when lifting up a piece of wood he believed was trash—the wood was covering a hole in a multi-story parking garage and was not marked or secured pursuant to OSHA regulations

If you are contacted by a family of a worker killed in a situation that involves wrong-doing of some degree, we would be honored to work on this case with you. We will put our resources to work in order to investigate the facts to determine if a gross negligence case can be made. While evidentiary and legal hurdles exist in these cases, we can put our experience and expertise to work to maximize the potential for recovery.

Miller Weisbrod, LLP is a national law firm specializing in catastrophic injury and wrongful death cases. Partners Clay Miller and Les Weisbrod have built the firm’s reputation with successful verdicts, settlements, appeals and favorable decisions across the country. With resources and finances available to take on the powerful interests that have caused harm, the firm is committed to providing quality representation for clients who are seriously injured and families of victims who are killed as a result of the negligence or misconduct of others.

Miller Weisbrod has offices in Dallas and affiliate offices in Houston and Austin. For more information call toll-free at (888) 987-0005.