Where an employee sustains an injury arising from an accident arising out of and in the course of employment which results in instant death or thereafter results in death during the period of disability, the individuals who are the employee’s “dependents” may be entitled to benefits. O.C.G.A. § 34-9-265. 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”. Glen Falls Indemnity Company v. Jordan, 56 Ga. App. 449 (1937). A dependent must have been dependent upon the employee for at least three months prior to the employee’s death to qualify to recover some or all of the benefits owed to the employee.
If the deceased employee leaves dependents O.C.G.A. § 34-9-265(b)(2) requires the employer to continue paying income benefits to the surviving dependents of the employee who are wholly dependent on his earnings for support at the time of the injury equal to the compensation provided in O.C.G.A. § 34-9-261 for total incapacity. If the employee leaves dependents only partially dependent on his earnings for their support, the weekly compensation for these dependents shall be in the same proportion to the compensation for persons wholly dependent as the average amount contributed weekly by the deceased to the partial dependent. If there are no dependents, the insurer or self-insurer shall pay the State Board of Workers Compensation the lesser of half the benefits that would have been payable to such dependents or $10,000.00.
Who qualifies for dependent status under the Georgia Workers Compensation Act is a question often presented when the deceased employee leaves more than one surviving dependent. Questions of dependency, in whole or in part, shall be determined in accordance with the facts at the time of the accident, … and in such other cases, if there is more than one than one person wholly dependent, the death benefit shall be divided among them, and persons partially dependent, if any, shall receive no part thereof. O.C.G.A. § 34-9-13(d). The claimant has the burden of proving his or her dependency and the degree of such dependency. Wallace v. American Mutual Liability Insurance Company, 73 Ga. App. 869 (1946). A claimant dependent does not necessarily need to be a member of the decedent’s family or a relative in order to be eligible for dependency benefits. St. Paul Mercury Indemnity Company v. Robinson, 88 Ga. App. 217 (1953).
The Act classifies dependents as primary beneficiaries who were wholly dependent on the deceased employee and secondary beneficiaries who were partially dependent on the decedent to determine the priority of competing dependency claims. Pursuant to O.C.G.A. § 34-9-13(b) a wife or husband of the deceased employee is conclusively presumed to be next of kin wholly dependent upon the deceased employee for support if the surviving spouse was not living separately from the decedent for ninety days prior to the accident date. A child of the deceased is also presumed to be next of kin wholly dependent upon the deceased employee for support if the child is under the age of eighteen, or enrolled full time in high school, over eighteen and physically or mentally incapable of earning a livelihood, or under the age of twenty-two and a full time student or the equivalent in good standing enrolled at a post-secondary institution of higher learning. A “child” of the decedent includes dependent step children, legally adopted children, posthumous children and acknowledged children born out of wedlock but does not include married children. The use of the word “dependent” before each of these categories implies that proof of dependency is necessary before next of kin status can be conclusively presumed for each class of child noted in order to recover benefits for the death of the decedent.
Primary beneficiaries who are conclusively presumed to be totally dependent are entitled to the amount of compensation the deceased employee would have received for a compensable on the job accident. O.C.G.A. § 34-9-265(b)(2). Where there is more than one primary beneficiary, the amount of dependency benefits to be paid by the employer/insurer does not increase or decrease the total amount of weekly dependency benefits to be paid. Georgia Forestry Commission v. Harrell, 98 Ga. App. (1958). The Board has in its discretion the authority to apportion the death benefits equally among the eligible primary dependents. O.C.G.A. § 34-9-13(c).
If the decedent has at least one primary dependent, a partial dependent cannot recover dependency benefits. Stevedoring Services of America v. Collins, 247 Ga. App. 149 (2000). If there are no primary beneficiaries or a primary beneficiary waives their right to recover dependency benefits, secondary beneficiaries who are totally dependent on the decedent are eligible to recover dependency benefits. St. Paul Fire & Marine Insurance Company, 119 Ga. App. 619 (1969). Nevertheless, a person who is not presumed to be dependent must prove actual total or partial dependency for a period of three months prior to the decedent’s accident to recover death benefits.
A dependent spouse’s entitlement to death benefits ceases with remarriage or cohabitation in a meretricious relationship or reaching the age of 65 or the expiration of the the 400 week benefit cap or death. O.C.G.A. § 34-9-13(d). A dependent child’s entitlement to dependency benefits terminates at 18 years of age, except a child physically or mentally incapable of earning a livelihood or enrolled full time in high school or under 22 and is a full time student in good standing enrolled at a post-secondary institution of higher learning. O.C.G.A. § 34-9-13(d).