The idea behindVermont workers’ compensation is that it provides an “exclusive remedy” for an employee’s personal injury claims against an employer for a work-related accident or occupational illness. In simple terms, as long as your employer follows the workers’ compensation rules, you cannot sue. The exclusive remedy nature of workers’ compensation effectively bars most personal injury lawsuits.
This exclusive remedy provision also extends to potential claims brought by the estate or family of a worker who is killed in an on-the-job accident. Vermont workers’ compensation does provide certain statutory death benefits for surviving spouses and dependents, as well as limited funeral and burial expenses. But in most cases, these are the only benefits the estate and survivors can seek under the law, even if the employer’s negligence or recklessness caused the employee’s death.
The Difficulty of Proving “Specific Intent” to Injure in Vermont
One exception to the exclusive remedy rule, however, is for cases where there is proof that the employer “acted with specific intent to injure” the employee. For example, if a supervisor deliberately attacks an employee, and the latter dies as a result, the victim’s estate and family could pursue a wrongful death claim outside of the scope of workers’ compensation.
That said, proving “specific intent to injure” is an exceedingly high bar. A recent decision from a federal judge in Vermont, Lewis v. VR Us Holdings II, LLC, provides a helpful illustration. In this case, the judge dismissed a complaint brought by the widow of a professional zip line guide who was killed on the job. At least as presented to the court, the widow’s complaint failed to “avoid the exclusivity of the workers’ compensation remedy,” in the judge’s opinion.
The defendant owns and operates a popular ski resort. The defendant employed the victim as a zip line course guide for seven years prior to his death. According to the widow’s lawsuit, the defendant “fostered competition among employees to see who could achieve the fastest speeds on the zip line course.” This included using GPS trackers and police radar detectors to record how fast the employees completed the course.
One day, while leading a group of guests through the zip line course, the victim was traveling at a speed of approximately 76 miles per hour when his trolley brake system failed. This caused the trolley to fail and sent the victim flying into a platform, killing him. A subsequent investigation by the Vermont Occupational Safety and Health Administration (VOSHA) determined that the system was defective and should have been replaced years earlier. In response to this finding, the lawsuit alleged the defendant ignored the replacement recommendation, even though it placed the victim and other employees at-risk of a critical failure.
In assessing the widow’s complaint, Senior United States District Judge William K. Sessions III noted that there was no dispute that the defendant had met its obligations under Vermont workers’ compensation law. So the issue was whether or not the defendant acted with “specific intent” to injure the victim. If so, then the widow could proceed with her wrongful death claim.
Unfortunately, Sessions said the widow failed to clear that bar. The judge said that in a series of decisions, the Vermont Supreme Court established that intent to injure “only those instances where an employer deliberately causes an employee an injury.” It was not enough to allege the defendant engaged in reckless or dangerous safety practices that put employees at risk of death. That said, Sessions did grant the widow leave to amend and refile her complaint, which she did in June 2024. The case remains pending before Sessions.
Workers’ Compensation Death Benefits in Vermont
So how exactly do workers’ compensation benefits work for people killed on the job? Death benefits are established by statute and are paid to the deceased worker’s “dependents,” which includes their spouse, children under the age of 18, or any other child, parent, grandparent, grandchild, or sibling who is incapable of self-support and was wholly dependent on the victim.
Vermont workers’ compensation death benefits break down as follows:
- If the victim had no dependents, their estate receives up to $5,500 for burial and funeral expenses and up to $1,000 for out-of-state transportation of the body for burial.
- If the victim was married with no dependent children, the surviving spouse receives two-thirds of the victim’s average weekly wages until the spouse reaches the age of 62, or until their death or remarriage. But except in cases of the spouse’s death, their benefit must be at least 330 times the victim’s maximum weekly compensation at the time of their death.
- If the victim was married and had one dependent child, the death benefit is equal to 71-and-2/3 percent of the victim’s average weekly wages; if there are 2 or more dependent children, that percentage increases to 76-and-2/3.
- If the victim was not married but had dependent children, the benefits paid to the children are the same as the amount payable to a spouse with the same number of dependent children (e.g., if there is no spouse and 2 dependent children, they would equally divide a benefit of 76-and-2/3 percent.)
- Children continue to receive death benefits until they are no longer dependent. Depending on the circumstances, this can be when the child turns 18, or as long as they remain enrolled in school, suffer from a mental or physical disability, or otherwise become capable of supporting themselves financially.
- Any other dependent relative–parent, grandparent, grandchild, et al.–may receive death benefits as long as they remain in a condition of “actual dependency,” but in no case for more than 264 weeks.
If you have recently lost a loved one due to a work-related accident, injury, or illness, it is important to seek out legal advice from a qualified Vermont workers’ compensation lawyer. At Larson & Gallivan Law, our team can provide you with invaluable support, guidance, and representation when dealing with your late family member’s employer and their insurance company.Contact us today to schedule a free consultation.
