What should your family do this week?
File a workers' compensation death claim right away. The employer or its insurance carrier should already have an open claim if the injury happened on the job, but someone in the family needs to notify the employer in writing that the worker died from the injury. Ask the claims adjuster for the DWC Form 10133.36 (Notice of Potential Eligibility) if dependents have not been identified yet, and keep copies of the death certificate, coroner's report, and any accident reports. Do this within days, not months. There is a one-year deadline under Labor Code Section 5406 to file a death claim with the Workers' Compensation Appeals Board, measured from the date of death, and separate statute of limitations rules apply if a civil lawsuit is possible. Waiting to sort out grief before acting can cost your family benefits or evidence you will need later.
Why can't we just sue the employer?
California's workers' compensation system is what's called an "exclusive remedy." Labor Code Section 3600 says that when a worker is injured or killed on the job, workers' comp benefits are generally the only thing an employee or their family can collect from the employer, even if the employer was careless. This trade off has existed in California since the early 1900s: workers get benefits without having to prove fault, and employers are shielded from most lawsuits.
There are narrow exceptions. If the employer intentionally caused the injury, lacked required workers' comp insurance, or the injury involved certain toxic exposures where the employer concealed the danger (Labor Code Section 3602(b)), a civil claim against the employer might be possible. These situations require a careful legal review of the facts.
This article is general information about California workers' compensation, not legal advice about your situation. Every case is different.
Yazdchi Law, P.C. — Eman Yazdchi, responsible attorney. Office: Palmdale, California. Attorney advertising.