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A Refresher and Overview of Death Claims

August 02, 2016 BY Lauren Julian

One of the most challenging cases that can arise in the workers’ compensation arena involves a work-place fatality. These cases are difficult in terms of balancing of the tragedy surrounding the loss of a life and the devastation of the bereaved with the need to evaluate the claim for compensability, identify potential dependents, and timely commence benefits.

In order to be compensable, a work-place fatality must arise out of and in the course of employment. Under Georgia law, if a death arises out of and in the course of employment or occurs during the period of disability, and results proximately from the compensable work-related injury, an Employer/Insurer is responsible for the payment of dependency benefits.  It is not necessary that the compensable injury be the sole cause of the employee's death in order for the death to be compensable. Rather, the death may still be compensable if the underlying work injury at least aggravated a disease or dormant condition that contributed to the death. Therefore, in order to determine whether an employee’s fatality is compensable, the analysis must begin with a determination of whether the work injury was at least a contributing cause of death, the death may be compensable. It is the person claiming dependency benefits who has the burden of proving that the death was proximately related to the on-the-job injury.

Once a determination is made that an injured employee’s death is compensable, the next step is to identify the potential beneficiaries.  The law provides that certain persons are presumptively dependent on the deceased employee such as a surviving spouse who was not living separately for a period of 90 days immediately prior to the accident causing the deceased employee’s death.  O.C.G.A. § 34-9-13(b)(1). Additionally, unmarried children, including dependent stepchildren, legally adopted children, posthumous children, and acknowledged children, are conclusively presumed to be a primary beneficiary dependent if the child is under 18 years of age or enrolled full time in high school, over 18 years of age and physically or mentally incapable of earning a livelihood, or under the age of 22 and a full-time student in good standing enrolled in a postsecondary institution of higher learning. O.C.G.A. § 34-9-13(b)(2).

In addition to those with a presumption of dependency, a person can also establish dependency to a decedent, in whole or in part, by a showing of actual dependency on his or her income for the ordinary necessities of life for a period of at least three months prior to the accident. O.C.G.A. § 34-9-13(d); Insurance Co. of North America v. Cooley, 118 Ga. App. 46, (1968).  However, the current state of the law provides for a notable exception that includes a bar on recovery for dependency benefits to the unmarried partner in a meretricious relationship of a deceased employee. As the majority of the Georgia Supreme Court held in a split decision, “one who was not married to an employee, but who was living with the employee at the time of his death is not entitled to dependency benefits, despite actual dependency, on the grounds that such payments should not grow out of a meretricious relationship.”  Williams v. Corbett, 260 Ga. 668 (1990) and Insurance Co. of North America v. Jewel, 118 Ga. App. 599 (1968).  This is an interesting exception that is likely to be challenged given the rise of non-traditional relationship structures in today’s society.

Although at first glance one might think that the dependents in a death claim are easily identifiable, a closer examination must be made to determine whether every potential dependent is identified. This is because the entitlement and amount of death benefits will depend on the number and type of dependents.  For example, if a deceased employee leaves both whole and partial dependents, partial dependent(s) will receive no portion of the benefits. However, if a deceased employee leaves only partial dependents, they will share in the death benefit to the relative extent of their dependency. O.C.G.A. § 34-9-13(d); §34-9-265(b)(3). Further, if the surviving spouse is the sole dependent, the total compensation is capped at $220,000.00. O.C.G.A. § 34-9-265(d). In the event a deceased employee leaves no qualifying dependents, an amount equal to one-half of the benefits that would have been payable, or $10,000.00, whichever is less must be paid to the State Board of Workers’ Compensation. O.C.G.A. § 34-9-265(f)

            If death benefits are owed, the Employer/Insurer will pay benefits on a weekly basis in the amount of the deceased employee’s temporary total disability compensation rate, with the benefit shared among the number of dependents. O.C.G.A. § 34-9-265(b)(2).  A dependent will continue to receive benefits for up to 400 weeks or until reaching the age of 65, whichever provides the greater benefit.  However, the 400 week cap is subject to a reduction for each week of temporary total disability benefits, temporary partial disability benefits, and permanent partial disability benefits paid to the deceased employee before death. Further, a surviving spouse’s dependency will terminate upon remarriage or cohabitation in a meretricious relationship. The dependency of a child will terminate upon reaching the age of 18, or 22 if enrolled full time and in good standing in a postsecondary institution of higher learning, absent a physical or mental handicap preventing him or her from earning a livelihood.    O.C.G.A. § 34-9-13(e). In addition, the dependents are also eligible for the reasonable expenses for the employee’s last sickness, typically consisting of an emergency room visit and autopsy, and burial expenses up to $7,500.00. O.C.G.A. § 34-9-265.

In closing, although a claim involving a fatality in the work place is one of the most challenging that can arise, a basic understanding of the law involving dependents and the potential benefits will go a long way in successfully handling the claim. As each case is different, please give us a call if you have any questions or would like an opinion regarding a particular claim. 

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley