Parents cannot waive comp coverage of deceased worker

In Texas, a legal beneficiary or administrator of an estate cannot exercise a deceased worker's right to waive workers' compensation coverage after the worker is killed on the job.

Case name: Davis v. Able Body Temporary Services, Inc., No. 01-09-00737-CV (Tex. Ct. App. 02/10/11).

Ruling: The Texas Court of Appeals held that workers' compensation held the exclusive remedy for parents who sued their deceased son's employer.

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What it means: In Texas, a legal beneficiary or administrator of an estate cannot exercise a deceased worker's right to waive workers' compensation coverage after the worker is killed on the job.

Summary: On the first day of his employment, a worker was killed when he fell from the 29th floor of a building that was under construction. The employer did not inform the worker of his right to opt out of workers' compensation coverage and retain a common law right of action that might accrue because of a work-related injury. The day after the accident, the worker's parents delivered a letter to the employer purporting to waive the worker's coverage. The following day, they sued the employer. The employer asserted that workers' compensation was the exclusive remedy for the parents. The Texas Court of Appeals held that the parents' suit was barred.

Texas workers' compensation law permits workers to waive coverage within five days of beginning employment. After construing the statute, the court said that the parents' letter did not waive the worker's coverage. The law states that a worker must waive coverage, and the court said that did not include a legal beneficiary or the administrator of an estate.

The court also said that the employer's failure to give the worker the required notice of his right to opt out of workers' compensation coverage did not prevent the employer from arguing the exclusive remedy defense. The parents further argued that the employer should not be able to rely on the exclusive remedy defense because it did not challenge the parents' waiver of coverage until after the deadline to file a workers' compensation claim expired. The court said the parents did not attempt to show good cause for their failure to file a claim or whether the employer contested their right to file.

Read more at the WorkersComp Forum homepage.

March 28, 2011

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