Death Benefits Under NC Workers Comp: Important Issues Part 2

Death From the Compensable Injury or Occupational Disease-NCGS 97-38 In Part 1, we discussed what occurs in the situation where the employee dies from causes unrelated to their on-the-job injury and then we discussed what happens if they die from related causes. We spoke about the very limited rights to recovery in the circumstances of death from unrelated causes.

It is obviously different for death which results from injury on the job. We then noted that if the death results from compensable injury or occupational disease, and that death occurs within six years of the accident or diagnosis of said disease, or within two years of the final determination of disability, whichever is later, then the compensation amount is 400 weeks from the date of death of the employee. There is also burial expenses not to exceed $3500.00. If the employee was already getting compensation before they died, the 400 weeks of benefits still begin from the date of death if the death is related to the compensable injury. Note that is the totally different from what happens if they employee passes from unrelated causes.

When the employee dies from their injuries, the employer is required to file a Form 29.

Compensation to certain dependents can actually continue for much longer than 400 weeks (about 7.7 years) in some instances.

We also discussed the fact that the unusual part of the statute really deals with who is entitled to receive the benefits after the death of the injured employee.

What you basically see from the statute is that where the worker dies from their injuries, the legislature wanted to continue the income of that worker primarily for those who were being supported by the deceased worker and who were relying on their support at the time of the accident, or in other words those who were dependents.

This is very different from wrongful death or intestate succession, which really has nothing to do with the concept of a ‘dependent,’ but relies merely on kinship and marriage.

The statute particularly favors those who were wholly dependent on the deceased at the time of the accident. The courts have interpreted the statute to mean that the recipients’ share of benefits is fixed as of the date of death of the employee.

We will now look at some of the classes of these persons.

Persons wholly dependent. Any persons who were entirely dependent on the deceased employee at the time of the accident are entitled to share, in equal proportion the entirety of the compensation for death. If that is only one person, then they get the entire amount.

Persons partially dependent. The share of the partially dependent person is done on a pro rata basis, comparing how much money the deceased gave to the support of the partial dependent to the amount of deceased employees annual earnings at the time of the accident. It appears you then take that ratio, and the ratio is used to determine the percentage of weekly payment that the partial dependent will receive.

No dependents: Next of Kin Pursuant to NCGS 97-40. If there are no whole or partial dependents of the deceased at the time of his or her death, then the 400 weeks is commuted to its present value and paid in lump sum for the next of kin. The way that is figured up is by a special commuted value table, which has been compiled by the Industrial Commission.

“Next of kin”-for the purposes of this section, this only means a child, father, mother, or brother, or sister of the deceased employee. The order of priority as to any of these next-of-kin who were not dependent in any way on the deceased employee, goes by the intestate succession statute.

Abandoning parent. The statute specifically excludes as “next-of-kin” any parent who has willfully abandoned the care and maintenance of his or her child. What that means is defined further in the section. The statute does go on to say that any such abandoning parent is treated as if they had died before their child (the deceased employee), i.e. they get nothing.

No dependents or next of kin. If no whole or partial dependents are left at the time of the employee’s death, and there are no next-of-kin, then all the employer is responsible for is to pay up to $3500.00 of the funeral expenses.

Disabled Widow or Widower – here is where the statute really does expand benefits. A disabled, widowed spouse can get more than 400 weeks. In the case of a widow or widower who is unable to support herself or himself because of physical or mental disability as of the date of the death of the employee, the compensation payments are to continue, even if it is beyond the 400 weeks, for the remainder of the widow or widower’s lifetime, or until they are remarried.

Dependent Child. Also, compensation payments due to a dependent child are to be continued until such child reaches the age of 18. Obviously, if the child is an infant at the time of the worker’s death, those payments can extend for much longer than 400 weeks. For instance, on a one-month old child, there would be about 932 weeks of compensation due.

Presumptions relating to Widows, Widowers, and children. According to NCGS 97-39, a widow, widower, and/or child shall be conclusively presumed to be wholly dependent for support on the deceased employee. In the cases of people outside these categories, the facts relating to dependency have to be determined on a case-by-case basis; however, no compensation is allowed for anyone claiming dependency on the deceased worker unless the dependency existed for a period of three months or more prior to the accident.

Definitions of a widow or widower. According to NCGS 97-2(14), a “widow” includes only the decedent’ s wife living with or dependent for support upon him at the time of his death; or living apart for justifiable cause or by reason of his desertion at such time.

The same language applies to a “widower” at NCGS 97-2(15).

Of course, the determinations of how these definitions apply to a particular case can get sticky. For instance, what if the spouse was committing adultery prior to the death of the worker? The courts have said it doesn’t matter— the adulterous spouse would still be entitled to benefits; however, in cases where, for instance, dependent wife has signed a separation agreement and surrendered all rights to support, she is not considered a “widow.”

Illegitimate children must be acknowledged by the father prior to his death in order to qualify for benefits under the Act.

In all cases relating to distribution of death benefits there are procedures set forth under Rule 409 of the North Carolina Industrial Commission Rules which must be followed in order to get them paid.

Please see the link to Rule 409 of the Industrial Commission Rules for further information.

In the event a settlement is reached, FORM 30 is used.

If you have suffered a work accident, contact Joe Miller Law in Elizabeth City, NC, and Norfolk, Va, where attorney Joseph Miller, Esq has been representing injured North Carolina workers for over 20 years. Call us toll-free 888-694-1671 or contact us online for a FREE, no commitment discussion of your case.