A detailed guide to determining dependency benefits for death claims in Georgia
According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI), in 2018, a total of 5,250 workers died from work-related injuries. Since 2009, preventable work-related deaths have increased by 20%, while the number of total workers only increased 10%. One U.S. worker died every 2 hours from a work-related injury. Once compensability of a death claim is established, the next issue is to determine whether the deceased worker had any dependents.
The Georgia Workers’ Compensation Act (the “Act”) ensures that an employee’s dependents are entitled to workers’ compensation benefits when an employee dies as the result of a compensable work-related injury. While determining dependency appears to be a relatively simple matter, in reality, it is perhaps the most complex issue to address when handling a death claim.
Human relationships are, by nature, complex. While the Act is fairly specific, it simply cannot address every possible relationship that could potentially result in dependency. Further complicating matters is a shortage of case law dealing with dependency issues. Because of the high stakes involved, the parties rarely risk the uncertainty of a trial and generally settle these claims.
Determining dependency in Georgia
Am I eligible for workers’ compensation death benefits?
Before commencing settlement negotiations in a death claim, it is necessary to identify all the potential dependents of the decedent. Perhaps the best approach is to ask yourself the following questions:
- What was the marital status of the decedent at the time of death?
- Did the decedent have any children as defined by the Act?
- Who are the decedent’s potential dependents?
The governing statute (O.C.G.A. §34-9-13) defines who is presumed to be next of kin, the apportionment of payments among partial and total dependents, and termination of dependency. For example, pursuant to O.C.G.A. §34-9-13(b):
The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee:
(1) A wife or husband, except that if the wife and husband were living separately for a period of 90 days immediately prior to the accident which resulted in the death of the deceased employee the presumption of total dependence shall be rebuttable; and
(2) A child of the employee if:
(A) The child is under 18 or enrolled full-time in high school;
(B) The child is over 18, and is physically or mentally incapable of earning a livelihood; or
(C) The child is under the age of 22 and is a full-time student or the equivalent in good standing enrolled in a postsecondary institution of higher learning.
According to the Act, a “child” includes dependent stepchildren, legally adopted children, posthumous children, and acknowledged children born out of wedlock. However, it does not include married children, even those who are under 18 years of age. The Act defines “parents” to include stepparents and parents by adoption. Thus, the parent/child relationship is not limited by biology.
We can state for certain that, provided they meet the above established criteria, both surviving spouses and children are statutorily defined as dependents of a deceased employee. In fact, spouses and children are categorized as primary beneficiaries.
Primary beneficiaries
Primary beneficiaries include only the surviving spouse of the decedent and/or the decedent’s children as defined by the Act. These primary beneficiaries are conclusively presumed to be total dependents. Primary beneficiaries are entitled to recover all of the weekly dependency benefits. Secondary beneficiaries are not entitled to any portion of the recovery unless the primary beneficiary waives their right to benefits. If there are additional primary beneficiaries, the total amount of dependency benefits would be divided equally. A waiver by the primary beneficiary doesn’t have to be explicit, but it can also be implicit.
For example, if a primary beneficiary (for instance, a deceased workers’ wife) fails to file a claim for dependency benefits within the 1 year statute of limitations, the court will waive their right to dependency benefits. Thus, a secondary beneficiary (such as the mother of the deceased worker) who was totally dependent on him or her can seek dependency benefits.
It’s important to note that the Georgia Court of Appeals has held that the 1-year death claim statute of limitations applies only to primary beneficiaries and not to secondary beneficiaries who are only contingently entitled to dependency benefits.
In some cases, a waiver by a primary beneficiary can significantly increase the total potential exposure of a claim. For example, if the only potential primary beneficiary is the surviving spouse, the total potential exposure is the statutory cap of $270,000. However, if the surviving spouse has legal custody of a minor grandchild, and elects to waive their primary beneficiary status, then the grandchild, who is a secondary beneficiary, could seek dependency benefits. The statutory cap would not apply, and the total potential exposure would be based solely on the grandchild’s age. In fact, since the minor grandchild is a totally dependent secondary beneficiary, the argument could be made that they are entitled to a lifetime of weekly benefits.
Finally, the number of primary beneficiaries doesn’t increase nor decrease the total amount of weekly dependency benefits to be paid. In Georgia Forestry Comm’n v. Harrell (1958), the deceased employee left behind 4 primary beneficiaries (a wife and 3 children). When the wife remarried, which resulted in the termination of her dependency benefits, the employer was not permitted to reduce the amount of benefits by a fourth. Instead, the employer’s insurer paid the same weekly benefits as before, but each child now received a third share. The total amount of the weekly dependency benefits remained the same.
Secondary beneficiaries
When there are no primary beneficiaries or when primary beneficiaries waive their right to recover dependency benefits, the decedent’s secondary beneficiaries become eligible to recover weekly dependency benefits. A secondary beneficiary is any dependent who is not a child of the deceased employee or the decedent’s spouse. Thus, a secondary beneficiary doesn’t have to have a biological connection to the deceased employee. However, a secondary beneficiary must prove whether he is wholly or partially dependent on the decedent.
Georgia case law defines a dependent as someone who looks to another person for financial support or depends on another person for the ordinary necessities of life to which that person has become accustomed. The dependent must have relied upon the decedent to maintain his or her “standard of living” in order to be considered a dependent.
A determination of dependency is not based upon the potential dependent’s ability to support himself or herself without the contribution of the deceased employee. Rather, dependency is determined by the facts and circumstances of each case. Furthermore, the amount and frequency of the support is irrelevant to a determination of dependency.
However, in order to be entitled to dependency benefits, a secondary beneficiary must prove that he or she was dependent on the deceased employee at the time of the accident and any such dependency must have existed for a period of at least 3 months prior to the decedent’s accident. Finally, secondary beneficiaries remain entitled to weekly disability benefits “only during the dependency.”
Totally dependent secondary beneficiaries
A secondary beneficiary who is able to prove that he or she was totally dependent upon the decedent at the time if the employee’s accident will remain potentially eligible for lifetime weekly dependency benefits.
On the other hand, once the totally dependent secondary beneficiary dies, the right to weekly dependency benefits dies with them because their estate has no right to recover dependency benefits after their death.
Keep in mind, the death of such a dependent will not diminish the amount of the weekly dependency benefits to which any remaining total dependents may be entitled.
Partially dependent secondary beneficiaries
Once there are no longer any primary beneficiaries (i.e., spouse or children) or totally dependent secondary beneficiaries, only then can individuals who were partially dependent upon the deceased employee seek to recover partial dependency benefits.
If there is more than 1 partially dependent secondary beneficiary, they will each share in the weekly benefits according to the relative extent of their dependency. However, if partial dependency stems from a “meretricious” relationship, then the partially dependent secondary beneficiary is not entitled to recover any partial dependency benefits.
A meretricious relationship is defined as a relationship 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.
In order to establish partial dependency, a claimant does not have to prove that he or she had no other income. Moreover, the claimant may establish partial dependency even where contributions by the decedent were made at irregular intervals and in irregular amounts.
It’s also important to note that if the decedent contributed their entire wages to the partially dependent claimant, then such a dependent may be entitled to weekly temporary total disability (TTD) benefits based upon the entire amount of the decedent’s pre-injury average weekly wage (AWW).
However, if the decedent contributed only a part of their pre-injury wages to the partial dependent, dependency benefits are paid based on the relative extent of each partial dependent’s dependency based on the decedent’s AWW.
For example, if the decedent’s AWW was $600 per week, and he left behind no dependents other than his mother, to whom he contributed $150 per week for her support, the decedent’s mother would be entitled to $100 per week in partial dependency benefits (i.e., $150 ÷ $600 x $400 = $100).
It’s vital that you understand your state’s unique rules and what benefits your family is entitled to receive.
Amount & termination of dependency benefits
How much can I receive in workers’ compensation death benefits, and for how long?
This is perhaps one of the most complex areas of the workers’ compensation law. Therefore, we will address the most straightforward scenario first:
the sole surviving spouse.
Primary beneficiaries
Sole surviving spouse
When there is a dependent spouse, but no dependent children for more than 1 year after the employee’s death, the sole surviving spouse is entitled to receive the full benefit up to the statutory cap of $270,000 per year. However, dependency of such a spouse will terminate with remarriage or cohabitation in a meretricious relationship.
If income benefits were paid to the injured employee before his or her death, then any such benefits “shall be subtracted from the maximum 400 week period of dependency of a spouse as detailed in O.C.G.A. § 34-9-13.”
However, it’s important to note that the Georgia Court of Appeals has held that the employer may only take credit for income benefits already paid to an injured employee against dependency benefits owed to a surviving spouse if the spouse will receive dependency benefits subject to the 400-week cap and not because the spouse turned 65.
Dependent spouse with dependent children
If there is a dependent spouse and dependent children at the time of the decedent’s death, the statutory cap of $270,000 is no longer applicable. Here, dependency of the spouse will terminate at age 65 or after payment of 400 weeks of benefits, whichever provides the greater benefit.
The full amount is paid to the spouse for the benefit of the surviving spouse and the children. However, Georgia’s State Board of Workers’ Compensation has the authority, in certain cases, to apportion benefits as it sees fit.
For example, when there is a surviving spouse, but also dependent children from a prior marriage, and the dependent children are living with the former spouse, the State Board would have the discretion to apportion the benefits between the widow and the children from the prior marriage (but not the former spouse).
Dependent children
The dependency of a child, except a child who is physically or mentally incapable of earning a livelihood, will terminate when that child reaches the age of 18, unless he or she is enrolled full-time in high school or is under the age of 22 and is a full-time student (or the equivalent) in good standing enrolled in a postsecondary institution of higher learning.
Secondary beneficiaries
Totally dependent
If there are no primary beneficiaries or the primary beneficiaries waive their right to compensation, a totally dependent secondary beneficiary remains entitled to weekly benefits, but “only during the dependency.”
Thus, there is the potential for a totally dependent secondary beneficiary to be entitled to lifetime weekly benefits. However, upon death of the beneficiary, the right to weekly compensation dies and the estate is not entitled to recover any additional benefits following the death.
Partially dependent
Individuals who were partially dependent upon the decedent at the time of the on-the-job accident are entitled to recover partial dependency benefits to age 65 or after the payment of 400 weeks, whichever provides the greater benefit.
No dependents
Georgia law (O.C.G.A. §34-9-265(f)) provides that if no dependents or dependents qualifying to receive weekly benefits are identified, then the employer or insurer is required to pay to the State Board half of the benefits which would have been payable to such dependents or a sum of $10,000, whichever is less.
If, after such payment has been made, it is determined that a dependent or dependents do qualify to receive benefits, the employer/insurer will be entitled to reimbursement by refund for moneys collected in error.
Conclusion
When and why do I need to hire a workers’ compensation attorney near me?
Identifying and addressing dependency issues is the first priority in handling a workers’ compensation death claim. To that end, the first step is to determine the deceased employee’s marital status at the time of his or her work-related death, and whether they had any children as defined by the Act. The decedent’s surviving spouse and children are primary beneficiaries and they are conclusively presumed entitled to dependency benefits.
If the decedent was not married nor had any children, it’s necessary to identify any and all potential secondary beneficiaries and determine whether these secondary beneficiaries are entitled to dependency benefits. Secondary beneficiaries are always required to prove their total or partial dependency in fact. Therefore, a secondary beneficiary’s claim for benefits must be carefully analyzed in light of the facts and circumstances presented.
Finally, it’s always important to keep in mind that primary beneficiaries may elect to waive their primary status. Such a waiver can be either implicit or explicit. Either way, a primary beneficiary’s waiver has the potential to significantly impact the total potential exposure of the claim because a totally dependent secondary beneficiary has the potential to be eligible for lifetime weekly dependency benefits.
If you lost a loved one and have any questions about a potential workers’ compensation death claim, we invite you to consult Gerber & Holder Workers’ Compensation Attorneys. Our Atlanta work injury lawyers are highly experienced, deeply knowledgeable and immensely capable in complex work accident cases such as in the case of a job-related fatality.
CONTACT US TODAY FOR YOUR FREE CONSULTATION.
Georgia workers’ compensation death benefits: laws and statutes
O.C.G.A. § 34-9-13. Definitions; persons presumed next of kin; apportionment of payments among partial and total dependents; termination of dependency
(a) As used in this Code section, the term:
(1) “Child” includes dependent stepchildren, legally adopted children, posthumous children, and acknowledged children born out of wedlock but does not include married children; and
(2) “Parent” includes stepparents and parents by adoption.
(b) The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee:
(1) A wife or husband, except that if the wife and husband were living separately for a period of 90 days immediately prior to the accident which resulted in the death of the deceased employee the presumption of total dependence shall be rebuttable; and
(2) A child of the employee if:
(A) The child is under 18 or enrolled full time in high school;
(B) The child is over 18 and is physically or mentally incapable of earning a livelihood; or
(C) The child is under the age of 22 and is a full-time student or the equivalent in good standing enrolled in a postsecondary institution of higher learning.
(c) If the deceased employee leaves a dependent surviving spouse, as above described, and no dependent child or children, the full compensation shall be paid to such spouse. If the deceased employee leaves a dependent surviving spouse, as above described, and also a dependent child or children, the full compensation shall be paid to such spouse for his or her use and that of such child or children; provided, however, that the board shall have the power in proper cases, in its discretion, to apportion the compensation; provided, further, that, if the dependent surviving spouse dies before payment is made in full, the balance remaining shall be paid to the person or persons wholly dependent, if any, share and share alike. If there is no person wholly dependent, payment shall be made to partial dependents.
(d) In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the facts at the time of the accident, but no allowance shall be made for any payment made in lieu of board and lodging or services, and no compensation shall be allowed unless the dependency existed for a period of three months or more prior to the accident. In such other cases, if there is more than one person wholly dependent, the death benefit shall be divided among them, and persons partially dependent, if any, shall receive no part thereof; if there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency.
(e) For the purpose of this chapter, the dependency of a spouse upon a deceased employee shall terminate with remarriage or cohabitation in a meretricious relationship; and for this purpose cohabitation in a meretricious relationship shall be a relationship 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. The dependency of a child, except a child physically or mentally incapable of earning a livelihood, shall terminate with the attainment of 18 years of age, except as provided in paragraph (2) of subsection (b) of this Code section. The dependency of a spouse and of a partial dependent shall terminate at age 65 or after payment of 400 weeks of benefits, whichever provides greater benefits.
O.C.G.A. § 34-9-265. Compensation for death resulting from injury and other causes; penalty for death from injury proximately caused by intentional act of employer; payment of death benefits where no dependents found
(a) When an employee is entitled to compensation under this chapter for an injury received and death ensues from any cause not resulting from the injury for which he or she was entitled to compensation, payments of the unpaid balance for such injury shall cease and all liability therefore shall terminate.
(b) If death results instantly from an accident arising out of and in the course of employment or if during the period of disability caused by an accident death results proximately therefrom, the compensation under this chapter shall be as follows:
(1) The employer shall, in addition to any other compensation, pay the reasonable expenses of the employee’s burial not to exceed $7,500.00. If the employee leaves no dependents, this shall be the only compensation;
(2) The employer shall pay the dependents of the deceased employee, which dependents are wholly dependent on his or her earnings for support at the time of the injury, a weekly compensation equal to the compensation which is provided for in Code Section 34-9-261 for total incapacity;
(3) If the employee leaves dependents only partially dependent on his or her earnings for their support at the time of the injury, 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 dependents bears to the deceased employee’s average weekly wages at the time of the injury; and
(4) When weekly payments have been made to an injured employee before his or her death, compensation to dependents shall begin on the date of the last of such payments; but the number of weekly payments made to the injured employee under Code Section 34-9-261, 34-9-262, or 34-9-263 shall be subtracted from the maximum 400 week period of dependency of a spouse provided by Code Section 34-9-13; and in no case shall payments be made to dependents except during dependency.
(c) The compensation provided for in this Code section shall be payable only to dependents and only during dependency.
(d) The total compensation payable under this Code section to a surviving spouse as a sole dependent at the time of death and where there is no other dependent for one year or less after the death of the employee shall in no case exceed $150,000.00.
(e) If it shall be determined that the death of an employee was the direct result of an injury proximately caused by the intentional act of the employer with specific intent to cause such injury, then there shall be added to the weekly income benefits paid to the dependents, if any, of the deceased employee a penalty of 20 percent; provided, however, such penalty in no case shall exceed $20,000.00. For the purpose of this subsection, an employer shall be deemed to have intended an injury only if the employer had actual knowledge that the intended act was certain to cause such injury and knowingly disregarded this certainty of injury. Nothing in this subsection shall limit the effect of Code Section 34-9-11.
(f) Each insurer or self-insurer which, in a compensable death case, finds no dependent or dependents qualifying to receive dependency benefits shall pay to the State Board of Workers’ Compensation one-half of the benefits which would have been payable to such dependent or dependents or the sum of $10,000.00, whichever is less. All such funds paid to the board shall be deposited in the general fund of the state treasury. If, after such payment has been made, it is determined that a dependent or dependents qualified to receive benefits exist, then the insurer or self-insurer shall be entitled to reimbursement by refund for moneys collected in error.
Other sources
https://injuryfacts.nsc.org/work/work-overview/work-related-fatality-trends/
