There were 112 fatal workplace injuries in South Carolina in 2023. These occupational deaths leave families grieving and unprepared.

Survivors may receive compensation for wrongful death through workers’ compensation and/or personal injury wrongful death litigation.

Our experienced Greenville wrongful death lawyer at Bobby Jones Law explains how to get compensation for a wrongful death at work.

Understanding the Difference Between Workers’ Comp and Wrongful Death Claims

There are two ways that survivors may get compensation for a wrongful death at work: workers’ compensation and wrongful death litigation.

Workers’ compensation for a workplace death

Workers’ compensation is a no-fault system that provides benefits for workplace injuries and deaths. Survivors don’t have to prove that the employer was at fault. Benefits are based on the person’s wages before death plus an allowance for burial expenses.

Wrongful death litigation for a workplace death

If there is a third party at fault (i.e., someone other than the employer), survivors may claim for wrongful death. Wrongful death requires proving legal fault, like negligence or other misconduct.

Damages, including both economic and non-economic damages, are available under personal injury law.

Workers’ Compensation & Wrongful Death Claims in SC – Chart

Workers’ Compensation	Wrongful Death
Who files	Employer reports death, survivors file, all survivors identified and notified	Personal representative files on behalf of beneficiaries
Claims process	SC Workers’ Compensation Commission, appealable to the court	Magistrate Court, Circuit Court
Wage benefits	Yes, 2/3 of average weekly wages before injury, for 500 weeks	Based on loss of income and career potential
Non-economic damages	No	Yes
Measure of damages	Average weekly wages before injury, burial allowance	Loss to victims due to wrongful death
Fault required	No	Yes
Who to claim against	Employer	Others at fault, besides the employer
Right to a hearing/trial	Yes	Yes

When Is an Employer Liable Outside of Workers’ Compensation?

It is rare that an employer is liable for wrongful death outside of workers’ compensation.

However, if the employer acted intentionally or with reckless disregard for employee safety, they may be liable in a traditional wrongful death claim. In addition, if the employer doesn’t have workers’ compensation insurance, or if it wasn’t a circumstance covered by workers’ compensation, traditional rules of liability may apply.

Filing a Third-Party Lawsuit for a Fatal Work Accident

It may be possible to file a third-party lawsuit for a death in the workplace. Workers’ compensation is the exclusive remedy against the employer. However, there may be a situation where a worker is on the job and is the victim of third-party negligence or other misconduct that results in death. Survivors may have a claim for both workers’ compensation and wrongful death.

Survivors may pursue both types of claims and the benefits available through each. The employer’s insurer can seek reimbursement for benefits paid for workers’ compensation. It can be beneficial to pursue both types of claims, but it’s important to evaluate how it impacts the final recovery.

Benefits Available Under Workers’ Comp for Fatal Injuries

Benefits available for fatal injuries under workers’ comp in South Carolina are 2/3 of the workers’ average weekly wage, paid for 500 weeks, plus burial expenses up to $12,000.

How are benefits divided?

In workers’ compensation, beneficiaries are the:

Spouse
Children under 18
Children 19-23 who are full-time students
Children physically or mentally disabled and unable to support themselves
Other family members, such as parents, if they can prove financial dependency at the time of death

Half the benefits are awarded to the spouse, and the children split the remaining benefits equally. Wholly dependent beneficiaries have priority over partial dependents. The surviving spouse is presumed wholly dependent. If there is no spouse, the children split the proceeds equally.

Who Can File a Wrongful Death Claim for a Workplace Fatality?

In wrongful death, the beneficiaries may vary, depending on who survives the victim. Generally, the spouse receives half, and the children split the other half.

Unlike workers’ compensation, there is no age cut-off for children. Adult children may receive proceeds as though the victim had died intestate. Plus, parents may qualify, even if they are not financially dependent on the victim. If the decedent has a will, the will determines the distribution of assets, but it does not affect the distribution of wrongful death proceeds.

Types of Compensation in a Workplace Wrongful Death Claim

Compensation in a workplace wrongful death claim may include economic damages, funeral costs, lost income, loss of companionship, and suffering. Learn more about How Much Your Wrongful Death Claim Is Worth.

How To Get Workers’ Comp for Death at Work in SC

To get workers’ compensation benefits for a death at work in SC, take the following steps.

When the death occurs, the employer should file Form 12A, First Report of Injury or Illness. If the victim dies after Form 12A is filed, the employer must send a separate letter notifying of the death and whether it is believed to be related to the earlier injury.
The employer must use due diligence to identify potential beneficiaries. The employer lists potential beneficiaries as an attachment to Form 12A.
Separately, beneficiaries should file Form 52 to preserve their right to benefits. (Form 52 – Claimant’s Notice of Claim and/or Request for Hearing. File this form within two years of the death.)
Wait for employers’ response with Form 53. The employer must respond specifically to each statement in the application. They have 30 days to respond and serve other parties. Failure to reply is a denial of liability, but it forfeits special and affirmative defenses.
The Commission Claims Department will request an employer statement on liability. The employer will have 30 days to reply.
If liability is accepted, the Commission sets a hearing to determine the award to each beneficiary.
If liability is denied, the claimant must request a hearing using Form 52.
Mediation will be required before the hearing.

A workers’ compensation claim for death may be contested.

How To Get Wrongful Death Compensation for Death at Work in SC

To claim wrongful death benefits for a death at work in SC, ask the court to appoint a personal representative, and file a legal claim in court. You must prove liability and the amount of benefits.