If death occurs while the decedent was on the job, the right to sue may change. Under the New York's Workers' Compensation Act, an employee who elects to take workers' compensation does not have a right to later sue his or her employer for injuries sustained in the workplace. N.Y. Workers' Comp Law §11 (Consol. 2002). If the decedent accepts workers' compensation and gives up his or her right to sue, beneficiaries or surviving relatives also cannot sue for wrongful death. Werner v. State, 53 N.Y. 2d 346 (1981).
If a person's death on the job was due to the negligent actions of a third party, however, the workers' compensation statute allows dependents to pursue a wrongful death suit against the third party, regardless of whether the decedent elected for workers' compensation through his or her employer. Rascoe v. Riteway Rentals, 176 A.D.2d 552 (N.Y. App. Div. 1991).