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Worker's Compensation Retaliation Claims Can Still Proceed After Death


Depending on the type of claim, a lawsuit might be dismissed if the plaintiff dies and his or her death is not related to the lawsuit. However, there are some types of actions, called "survival actions," which can still proceed after the plaintiff has died.

With survival actions, state law allows the plaintiff's estate to "take over" the personal injury claim, so long as it was filed before the person died. This is not to be confused with wrongful death actions, where the person's death is actually related to the lawsuit. In Alabama, Workers' Compensation retaliatory discharge claims have been held to survive death.

Worker's Compensation Retaliation Claims

Retaliation means taking an "adverse employment action" against an employee for "engaging in legally protected activity." When an employee files a claim for a work-related injury under the Workers' Compensation Act, that employee has engaged in legally protected activity. That just means that an employee is authorized under law to file a claim and the employee is protected from being terminated as a result. If an employer takes some adverse employment action against the employee, such as demotion or termination, then the employer has illegally retaliated against the employee, and, depending on the facts of the case, may have committed retaliatory discharge.

How does "survival" work for Worker's Comp claims?

If an employee files a Workers' Compensation retaliation claim after being terminated, and subsequently dies from a cause that is unrelated to his Workers' Compensation injury, his spouse can continue to prosecute the claim as the representative of his estate. Under the Alabama Workers' Compensation Act, benefits survive death when the degree of disability has been agreed upon by the parties or determined by the court before death.

However, in order for a tort claim for retaliatory discharge to survive, the claim must have been filed prior to the plaintiff's death. In other words, Alabama courts have decided that a retaliation claim based on a Workers' Compensation claim should be treated as a general tort, which survives death occurring after the claim was filed.

What is the difference between survival actions and wrongful death?

Survival actions are quite different from wrongful death actions in three significant ways. First, a wrongful death action is meant to compensate the decedent's family for their injuries or damages resulting from the death. Whereas, a survival action is based on the injuries suffered by the decedent, which are unrelated to his or her death.

Similarly, the types of damages that can be awarded are very different. Survival actions allow recovery for damages the decedent suffered, such as pain, suffering and economic losses. On the other hand, wrongful death actions are punitive in nature, and only compensate the financial injury caused to the decedent's living family members.

Finally, the damages recovered in a survival action are awarded to the estate of the decedent, which is then distributed to the family members according to state laws regarding inheritance or pursuant to a will. With wrongful death claims, the damages belong to the family members on whose behalf the lawsuit was filed.

Survival statutes differ from one state to another. So, it is important to discuss your claims with an experienced Alabama employment law attorney. If you have questions regarding your employment rights or possible legal claims, please contact our firm either online or by calling us at (205) 265-1880.

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