One of the most dreaded and difficult workers’ compensation scenarios an employer can face is the death of an employee. Although employee deaths are fortunately rare, every employer should understand the workers’ compensation implications of such an event.
One of the most dreaded and difficult workers’ compensation scenarios an employer can face is the death of an employee. Although employee deaths are fortunately rare, every employer should understand the workers’ compensation implications of such an event. An employee’s death may be compensable under the Georgia Workers’ Compensation Act. The compensable death may occur at the time of the accident, or may occur later as a result of the accident. Further, it is not necessary that the on-the-job injury be the sole cause of the employees death in order for the claim to be compensable. The injury may have merely triggered, activated, or aggravated a disease or condition that contributed to the employee’s death.
To recover under the Act for any injury the claimant typically has the burden to prove that the injury was the result of an accident “arising out of and in the course of employment.” This same is true for an on-the-job injury which results in death. To ease the burden for the claimant, when an employee’s death is unexplained a presumption exists as to the causation of the death if : 1) employee is found in a place where he might reasonably have been expected to be in the performance of his duties and 2) the death is unexplained, a presumption exists that the death arose out of the deceased employee’s employment. For example, in Zamora v. Coffee Gen. Hosp., where a maintenance worker was found robbed and strangled at work, the employee’s death was compensable. 162 Ga. App. 82, 290 S.E.2d 192 (1982). The court found that the “precipitating causative factor” of the death remained unknown, since there was insufficient evidence to explain the reason for the strangulation. Thus, the employee’s death was presumed to arise out of his employment.
Following an employee’s death, an employer may have several continuing obligations. First, the Act provides that the employer must cover any medical expenses incurred by the employee before death. Second,O.C.G.A. §34-9-265(b)(1) requires the employer to pay for employee’s “reasonable burial expenses” up to $7,500 ($5,000 if the accident occurred prior to July 1, 9999). Last, O.C.G.A. §34-9-265(b)(2) requires the employer to continue paying benefits to the surviving dependents of the employee. A dependent is defined as “one who looks to another for support or one who is dependent on another for the ordinary necessities of life to which he has become accustomed.” Glens Falls Indem. Co. v. Jordan, 56 Ga. App. 449, 193 S.E. 96 (1937). A dependent must have been dependent upon the employee for at least three months prior to the employee’s death to be in the position to recover some or all of the benefits owed to the employee. If the employee had no surviving dependents at the time of his death, the employer must pay the State Board of Workers’ Compensation the lesser of half of the benefits that would have been payable to such dependent(s) if one or more existed, or $10,000. O.C.G.A. §34-9-265(f). (Prior to July 1, 1995 this was payable to the Subsequent Injury Trust Fund).
A dependent must be classified to determine what benefits he is owed. To determine the priority of the claim of any surviving dependents, the Act classifies dependents as primary beneficiaries and secondary beneficiaries. While a primary beneficiary is receiving benefits, any secondary dependent receives nothing. For example, where a totally dependent minor child was entitled to death benefits, a partially (but secondarily) dependent mother of the deceased employee was not entitled to recover anything while the child was considered primarily dependent. Mays v. Glens Falls Indem. Co., 77 Ga. App. 332, 48 S.E.2d 550 (1948). A secondary beneficiary will only receive benefits upon the primary beneficiary’s death or waiver of the benefits. If there is more than one primary beneficiary, the benefits paid by the employer are divided between the beneficiaries. Thus, if a primary beneficiary loses the status of “dependent,” the employer continues to pay the same amount of benefits to the remaining primary beneficiaries, and the total amount is divided among the remaining primary beneficiaries.
Next the dependents must be classified as totally dependent or partially dependent. Certain dependents are presumed to be total dependents for the purpose of Workers’ Compensation benefits. The presumption exists for both a child of the deceased employee and a surviving spouse in limited circumstances to be deemed primary beneficiaries that are totally dependent upon the employee for support. The term “child” as defined byO.C.G.A. §34-9-13 includes any dependent stepchildren, legally adopted children, posthumous children, and acknowledged children born out of wedlock, but excluding married children. A dependent child is one that is under the age of 18 or enrolled full time in high school, over 18 and physically or mentally incapable of earning a livelihood, or under the age of 22 and enrolled in postsecondary institution of higher learning. A surviving spouse may be presumed totally dependent if the spouse was not living separately from the deceased for 90 days immediately prior to the accident. Both a child and a surviving spouse fitting the definitions under the Act are presumed to be totally dependent, though dependency may be rebutted. Prior to July 1, 2000 the dependence of a spouse could be rebutted with evidence of employment which results in only partial or no dependency. After July 1, 2000 the statute was amended to omit any reference to the employment of a surviving spouse, and employment no longer has any bearing on dependency.
If a dependent is found to have been totally dependent on the employee’s earnings for support at the time of the injury, the dependents will receive the amount of compensation the employee would have received for a compensable on the job accident. O.C.G.A. 34-9-265(b)(2). If a dependent is found to only be partially dependent on the employee’s earnings, the dependent will receive compensation in the proportion to the amount contributed by the employee to the partial dependents from the average weekly wage. O.C.G.A. §34-9-265(b)(3). If an employee leaves behind a totally dependent spouse and child or children, the spouse receives the full amount of dependent benefits. If the spouse dies while the children are still deemed dependent, the benefits are divided equally among the remaining dependents. O.C.G.A. §34-9-13(c).
If a person is not presumed to be dependent, it is still possible for an person to prove dependency “in fact.” O.C.G.A. §34-9-13(d). Dependency on the date of the accident, and existing at least 3 months prior to the accident is necessary to prove dependency in fact. However, dependency benefits will be denied if dependency arose out of a meretricious relationship. Williams v. Corbett, 195 Ga. App. 85, 392 S.E.2d 310 (1990). Meretricious relationships are defined as those in which persons of the opposite sex live together continuously and openly in a relationship similar or akin to marriage, which relationship includes either sexual intercourse or the sharing of living expenses.
Benefits paid to a surviving spouse may be terminated upon the spouse’s remarriage, cohabitation in a meretricious relationship, the later of reaching the age 65 or the expiration of 400 weeks, or death. If the deceased employee was paid compensation prior to his death, the number of weeks of payment to the employee is included in the total number of weeks payable to the dependent spouse. Thus, if the employee survived and was paid for 10 weeks following the accident but prior to his death, the surviving spouse’s benefits would terminate after receiving 390 weeks of benefit payments. O.C.G.A. §34-9-265(b)(4). Additionally, the maximum amount of compensation paid to a sole surviving spouse is $125,000 ($100,000 if the accident occurred prior to July 1, 2000 and $65,000 if the accident occurred prior to July 1, 1992). The total compensation is reduced by the amount of weekly payments made to the injured employee before death. O.C.G.A. §34-9-265(b)(4).
A dependent child’s benefits cease when the child reaches 18 unless enrolled full time in high school, is physically or mentally incapable of earning a livelihood, or is under the age of 22 and is a full time student or the equivalent in good standing enrolled at a post-secondary institute of higher learning. O.C.G.A. §34-9-13(e).
A dependent in fact’s benefits are terminated at the greater of the dependent reaching the age of 65 or after payment of 400 weeks of benefits. Further, benefits are owed only during dependency, so if the dependency is in any way lifted the benefits shall cease. O.C.G.A. §34-9-265(b)(4) and (c).