When someone dies on the job in Massachusetts, the family runs into a wall they never expected. They assume they can hold the employer responsible in court. Usually they cannot. Workers’ compensation sits in the way, and it pays far less than the life was worth. But there is a second path most families never hear about, and it is where real recovery usually lives. This is about finding it before it disappears.
Why you usually cannot sue the employer
Massachusetts runs a bargain called workers’ compensation. The worker gives up the right to sue the employer in court. In exchange, the comp system pays certain benefits without the family having to prove the employer did anything wrong. That trade is called the exclusive remedy, and courts enforce it hard.
The practical result is blunt. Even if the employer was careless, even grossly careless, the family generally cannot bring a tort claim against that employer for the death. A missing machine guard, a foreman who ignored a known hazard, a crew sent onto a roof without fall protection: none of it opens the courthouse door against the direct employer. Comp is the remedy, and comp is usually the only remedy against that one company.
Families hear this and assume the case is over. It is not. The exclusive remedy protects the employer. It protects no one else.
What comp actually pays, and what it leaves out
The death benefits under comp go to dependents. A surviving spouse and dependent children can receive weekly payments, and the system pays a set burial allowance. Those checks matter. For a family that just lost its income, they can be the difference between staying in the house and losing it.
But look at what comp does not touch. It pays nothing for the family’s grief. Nothing for the loss of the person: the companionship, the guidance, the presence at the dinner table. Nothing for the pain and suffering the worker endured before death, which in a bad crush or burn or fall can be its own separate agony. Comp is a wage-replacement and burial system. It was never built to measure the human loss.
That gap is the whole problem. The number comp produces has almost nothing to do with what the family lost. That is exactly why the second claim matters so much.
The third-party claim families miss
Here is the point that changes cases. Workers’ compensation bars a claim against the employer. It does not bar a claim against anyone else who helped cause the death.
Most job sites are crowded with companies that are not the worker’s employer. A fatal workplace incident often involves one or more of them:
- A general contractor or another subcontractor on the site whose crew created the hazard.
- The owner of the property or building where the work was done.
- The manufacturer of a machine, tool, ladder, or piece of equipment that failed. A defective guard, a faulty switch, or a bad design can be its own case; see defective product wrongful death.
- A negligent driver who struck the worker, common in road-crew, delivery, and trucking deaths.
- An electric utility, an equipment rental company, or a maintenance contractor whose failure energized a line or left a machine unsafe.
Any of these parties can be sued in the ordinary way, because none of them made the comp bargain with the worker. That lawsuit is the third-party claim. It is a wrongful death action under M.G.L. c. 229, § 2, brought against the outside party, and it runs at the same time as the comp claim. The family keeps the comp benefits and pursues the third party in court.
Electrocutions, burns, and heavy-equipment deaths
Some of the worst workplace deaths are almost tailor-made for a third-party claim, because the thing that killed the worker usually came from outside the employer.
Take an electrocution. A worker on a site touches an energized line or a machine that should have been de-energized. Who left it live? Often a utility, an electrical subcontractor, or an equipment maker with a defective component. Not the direct employer. Take a burn from a flash fire, a ruptured line, or an explosion. The fuel, the valve, the pressure vessel, the wiring: trace it back and you frequently land on a manufacturer or another contractor. Heavy-equipment crushes and falls follow the same pattern. A crane rigged by another company. A scaffold built by a different crew. A truck backing up with no spotter.
The lesson is simple. The deadliest incidents tend to have more than one company involved. That is not a complication. That is the opening.
Where the real recovery comes from
Because comp cannot pay for grief, lost companionship, or the worker’s suffering, the third-party wrongful death claim is usually where the family’s meaningful recovery comes from. That claim can reach the full range of losses the law recognizes, the things comp ignores. What those losses are worth is built from the facts and the records, not from any average; there is no meaningful average for a human life. You can read how Massachusetts measures these losses on our page about wrongful death damages.
Two claims, two very different jobs. Comp keeps the lights on while the case is pending. The third-party case is where the loss is actually accounted for.
The comp lien, stated plainly
There is one honest wrinkle. When the family recovers from a third party, the workers’ compensation insurer that paid benefits usually has a right to be repaid out of part of that recovery. This is the comp lien. In plain terms, the insurer does not get to pay death benefits and then walk away while the family collects again from the outside party for the same losses; it can claim reimbursement from a portion of the third-party proceeds.
Do not let this scare you off. A lien is a share of a recovery, not a reason to skip the claim; a well-handled third-party case is worth far more than the comp benefits alone, lien and all. The size of that lien, and how much of it the family keeps, is something a lawyer negotiates. The mistake is thinking the lien cancels the case. It does not.
Why every non-employer party has to be found early
Third-party cases are won or lost on evidence that does not wait. The scaffold gets taken down. The machine gets repaired, scrapped, or shipped back to the manufacturer. The site gets cleaned up within days. Other companies file their own reports and start protecting themselves before the family has even buried their person.
Someone has to identify every company that touched that job site and preserve the proof of what each one did. That means the contracts, the site logs, the equipment records, the maintenance history, and the physical object that failed. Wait too long and the defective ladder is in a landfill and the case that could have supported the family is gone.
There is also the question of who is even allowed to bring the claim. In Massachusetts a wrongful death action is filed by the estate’s representative, not just whoever steps forward; our page on who can file a wrongful death claim walks through it. Sorting that out early keeps the case from stalling later.
Questions families ask
Can I sue my family member’s employer for a workplace death?
Almost never. Workers’ compensation is generally the exclusive remedy against the direct employer, so you usually cannot sue that employer in court even for carelessness. The comp system pays dependent death benefits and a burial allowance instead. The employer’s protection does not extend to other companies, which is where a separate claim comes in.
Then how can there be a lawsuit at all?
Because comp only bars claims against the employer. If another party helped cause the death, a general contractor, a different subcontractor, a property owner, an equipment manufacturer, or a negligent driver, that party can be sued for wrongful death. This third-party claim runs alongside the comp benefits and is usually where the family’s real recovery comes from.
Does taking workers’ comp mean I give up the third-party case?
No. You can receive comp death benefits and still pursue the outside party. The comp insurer may later claim reimbursement from part of the third-party recovery through what is called a lien, but that is a share of the result, not a bar to bringing the case.
What if I am not sure another company was involved?
That is exactly why you call early. Most fatal job-site incidents involve more than one company, and the proof of who did what disappears fast. A lawyer investigates the site, the equipment, and the contracts to find every non-employer party before the evidence is cleaned up or destroyed.
How much is a workplace death case worth?
There is no honest average, and anyone who quotes you a number early has not seen the records. Value is built from the specific facts: what happened, who was responsible, and the full measure of the family’s loss. Be skeptical of any early figure.
If you lost someone at work, do not assume comp is the end of it. We investigate for every responsible party and pursue the third-party claim families miss. No fee unless we recover. Call 617-415-2100.
Related guides
Complete guide · Who can file · What families recover · The claim process
Attorney at Scalli Murphy Law, P.C. Massachusetts personal injury and wrongful death practice since 1994. This overview is general information and not legal advice.
Talk with a Massachusetts wrongful death attorney
Free, private, and no obligation.