What happens when a person dies on the job or as the result of a work-related accident?
What happens to your workers’ comp case if you die?
The answer to these questions is quite complicated and has many different facets. However, one thing should be made clear at the outset: Georgia’s workers’ compensation statute does indeed consider what would happen if an individual dies as a result of a work-related injury.
There are various avenues for recovery for the family of the deceased worker. We’ll explore a few of these avenues below. If you have specific questions about your workers’ compensation case, contact our experienced Atlanta work injury attorneys today for answers.
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Georgia workers’ compensation laws regarding death benefits
The first thing that must be considered when an individual loses their life due to a work-related accident is whether or not they are covered by the statute. In other words, if they had not died, would their injury have been compensable under Georgia law.
In Georgia, the requirements are:
- The employer must be subject to the Act. There must be at least 3 employees, or the employer must avail themselves under the statute by having coverage and electing to use it.
- The injury (in this case death) must occur in the scope and course of the deceased employee’s work or as a result of their work.
- There must be jurisdiction in Georgia. The simple test for jurisdiction is
a) if the injury took place in Georgia or the contract was signed here in Georgia,
b) if the injured party is a resident of Georgia, and
c) the work to be done was not to be performed exclusively out of the state. - There is not an affirmative defense, such as intoxication, which would exclude an otherwise compensable injury from being denied.
If these standards are met, then a workers’ compensation death case can be brought under Georgia law (34-9-265):
G. Payment of Compensation for Death Resulting From Injury (O.C.G.A. §34-9-265)
1. 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, the compensation under this Chapter shall be as follows:
a. The employer shall, in addition to any other compensation, pay the reasonable expenses of the employee’s burial not to exceed $7,500. If the employee leaves no dependents, this shall be the only compensation.
b. The employer shall pay the dependents of the deceased employee, who are wholly dependent on his/her earnings for support at the time of injury, a weekly compensation equal to the compensation which is provided for in O.C.G.A. §34-9-261 for total incapacity.
c. If the employee leaves dependents only partially dependent on his/her earnings for their support at the time of his/her 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’s weekly wage at the time of his/her injury.
d. When weekly payments have been made to an injured employee before his/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.
e. The total compensation payable under this 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 $230,000.
f. If there are no dependents in a compensable death case, the insurer or self-insurer shall pay the State Board of Workers’ Compensation one-half of the benefits which would have been payable to such dependents or $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 money collected in error.
Workers’ comp death benefits for surviving loved ones
There are 2 types of benefits that the dependents of a deceased worker can receive: temporary total disability benefits and burial expenses.
Burial expenses
Burial expenses are addressed in O.C.G.A. 34-9-265(b)(1). This section states that the dependents of the deceased shall receive reasonable burial expenses not to exceed $7,500. This is a hard number and set by statute (O.C.G.A. § 34-9-265). Unfortunately, it does not matter if the funeral, burial or cremation costs more. The only amount the family is entitled to for burial expenses is $7,500. If there are no dependents, this is the only compensation that shall be received by the deceased.
Outside of burial expenses, only dependents can recover benefits when an individual dies on the job. The benefits available are also prescribed in O.C.G.A. 34-9-265. This section states that the dependents shall be entitled to different types of benefits depending on when the death happened.
Indemnity benefits
If the death occurred instantly as a result of an on-the-job injury, the dependents shall be eligible for benefits under O.C.G.A. 34-9-261. This means that the calculation of benefits is the same as for a non-lethal on the job injury.
If the death occurs after the injury but as a result of the injury, then the beneficiaries can receive indemnity benefits (minus what has already been paid). The amount of these benefits is governed by the deceased’s average weekly wage at the time of the accident and not the death (if the initial accident and death did not occur at the same time). In other words, if an injured worker returned to work after his or her initial accident and received a raise, but subsequently died due to the initial accident, they would not get the benefit of the raise.
Currently, the maximum workers’ compensation rate in Georgia is $675 per week. To calculate the workers’ compensation rate, we have to take the average of the 13 weeks of the injured workers’ income prior to them getting hurt. If they did not work substantially the whole of the 13 weeks, then we can look at a similarly situated employee.
Calculating the workers’ compensation rate is a vital task in a workers’ compensation claim and it is important to go over these figures with an attorney to ensure that the rate is correct under the law.
It’s vital that you understand your state’s unique rules and what benefits your family is entitled to receive.
Who is eligible for workers’ comp death benefits in Georgia?
When an individual dies as a result of their on-the-job injuries, the question arises: Who is eligible to receive workers’ benefits due to the death? Obviously, the eligibility for medical benefits cease when the individual dies, but spouses, heirs and dependents could be eligible for ongoing indemnity benefits. In some cases, these benefits may last for decades. Therefore, it is important to discuss who, and in what order, are surviving individuals eligible for workers’ compensation benefits.
But before we explore the different categories of people who are eligible, it is essential to note that in order for benefits to continue after the injured worker has died, the injured worker must have died as a direct result of the accident or the work-related injuries they sustained.
Was the death work-related?
If the injured worker just died while receiving benefits due to reasons unrelated to the injuries or accident, all benefits from workers’ compensation insurance cease.
For example, let’s say a person suffers a job-related knee injury and cannot work. They receive workers’ compensation benefits including weekly temporary total disability checks. Tragically, they suddenly die as a result of congenital heart failure. Unfortunately, the family or any dependents cannot receive additional workers’ compensation benefits in this scenario.
However, if that individual dies from a blood clot, the family may be eligible for workers’ compensation benefits if the blood clot was caused by a medical procedure to treat the injured knee.
At Gerber & Holder, we dealt with a similar case recently when an injured worker went in for a compensable foot surgery and had a stroke as a result of developing a blood clot. Workers’ compensation was required to pay for all treatment related to the stroke, and when the individual tragically died the family was entitled to death benefits.
These circumstances can be very fact-specific and medically complicated. It is important to contact an attorney to help you determine whether or not a death was related to an on-the-job accident.
Remember, just because you don’t believe it is a work-related accident, does not mean that it isn’t. We recently helped a family where the worker died after they had clocked out of work but were on the way to their car in the employer-owned parking lot when they were struck by a vehicle and died.
Once it is determined that the individual died as a result of an on-the-job injury, the question then becomes who is eligible for death benefits, in what order, and what benefits are available.
What is a dependent?
O.C.G.A 34-9-13 discusses who is next of kin and determines the apportionment of payments among dependents. In a worker’s compensation claim, a dependent is a person who relied upon the deceased employee in order to maintain their standard of living. This is a question of fact and not a question of law, and needs to be determined by the evidence. A dependent can be, but doesn’t have to be, a relative of the deceased.
However, there is a clear order of priority in terms of who can receive benefits, and what percentage they receive.
There are 2 main types of beneficiaries: primary and secondary beneficiaries. The amount of compensation owed to different classes of dependents differs greatly. Therefore, what has to be defined in the instance of death is what a dependent is and what class they fall into.
Primary beneficiaries are children and spouses. Secondary beneficiaries exist when there are no primary beneficiaries, or when the primary beneficiaries waive their right to recovery.
Primary beneficiaries (children and spouses)
O.C.G.A. 34-9-13(b) states that:
The following people shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee:
(1) A wife or husband, except if the wife and husband were living separately for a period of 90 days immediately prior to the accident.
(2) A child of the employee if:
(A) The child is under 18 or enrolled full time in school
(B) The child is over 18 and is physically 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.
Let’s look at dependent children first.
The first class in order of priority is a child. This child can either be naturally born of the deceased or adopted at a later point in that child’s life. If an individual does not formally adopt stepchildren, then those children do not receive benefits so long as there is a natural-born child.
Dependent children are eligible for weekly benefits to be administered by a guardian or trustee, up until the age of 18 (or 22 years old if they remain enrolled in school). If there is more than 1 natural-born child, the children will divide the assets equally.
Once 1 of the children reaches the age of 18 or 22, their benefits will cease and be transferred proportionally to the other natural born or legally adopted children. They cannot continue to receive indemnity benefits, even if they remain out of work as a result of their parent’s untimely death. The only exception to this rule is if the child is incapable of earning a living due to a disability.
Sometimes the word “child” is used loosely to describe a minor who is dependent upon an adult. In the context of workers’ compensation, there are very strict definitions and even a hierarchy of who is considered the children of the deceased worker.
The first category of child dependents is legitimate natural minor children. These individuals are first in line and can receive benefits even if they weren’t actually dependent on the deceased worker. Legitimation can be proved via a birth certificate or a court order. An adopted child would be considered a legitimate child if there is an actual legal adoption and termination of the natural parent’s status.
The second category of child dependents is stepchildren. A stepchild is a child who is from a previous marriage. They are considered dependents of the deceased; however, there’s a catch. If there are legitimate natural children, the natural children are considered primary beneficiaries and entitled to all of the temporary total disability benefits. Stepchildren are only able to receive indemnity benefits if there are no primary beneficiaries, even if they were in fact dependent on the deceased.
An example of this scenario would be if a father had a child who didn’t live with him, but had a new spouse and her children did live with him. Even though he was the breadwinner of the family, if he didn’t legally adopt his step children, then his legitimate child would receive the workers’ compensation benefits — not his step children. After his child reached the age of 18 (or 22 if they were in college), only then would the surviving spouse be eligible for benefits, which we will now explore.
Spouses are treated differently. Surviving spouses are entitled to indemnity benefits if they were dependent on the deceased. The first requirement to prove that one was a spouse is a valid marriage certificate. Cohabitation, live-in girlfriends/boyfriends, and/or calling each other husband or wife does not qualify. There has to be an actual marriage with a marriage certificate. Common-law marriage is also not considered when determining who is a spouse for workers’ compensation purposes. In fact, common law marriage was outlawed in Georgia starting in 1996.
A surviving spouse is entitled to benefits for up to 400 weeks or up to age 65 (whichever is greater). If the accident occurred after July 1, 2019, the maximum recoverable by a surviving spouse is $270,000. However, if the deceased worker received indemnity benefits before their passing, these amounts can be subtracted from the total owed to the surviving spouse.
There are some limitations on a surviving spouse though. Benefits to a surviving spouse will cease if they do one of the following 3 things:
- Gets remarried.
- Enters into a meretricious relationship. This is defined in O.C.G.A. 34-9-13(e) as a relationship where parties of the opposite sex live together continuously and openly in a relationship akin to marriage. This can include the sharing of living expenses while living together or sharing residences.
- Dies.
Secondary beneficiaries
Secondary beneficiaries are individuals who were dependent on the deceased, but who is neither a spouse nor a child. They must demonstrate that they were dependent on the deceased for at least 3 months prior to the deceased’s fatal accident. This is a question of fact and can be demonstrated through evidence.
O.C.G.A. 34-9-265(b)(3) states that if the secondary beneficiary was only partially dependent on the deceased, then they will only receive indemnity benefits in conjunction with that amount. For example, if the deceased paid for his parents rent in the amount of $100 per week, but that was all he paid for, then the surviving parents will only receive $100 weekly — even if the deceased workers’ compensation rate was greater than that amount.
If there are no spouses or children (primary beneficiaries), then a factual analysis of a dependent may be required. For example, we worked with a 55-year-old man who never married and had no children, but he lived with his 80-year-old mother. He paid her rent and for groceries. He tragically died in a construction accident. Through testimony and financial records, we were able to prove that his mother was a dependent and she received temporary total disability death benefits.
Intentional death and workers’ compensation
Another consideration that’s important to understand is if the death of the injured worker was caused by an intentional act of the employer. In such cases, there shall be a penalty added to the weekly benefits paid to the employee of 20%, not to exceed $20,000.
O.C.G.A. 34-9-265 (e) defines “intent” as:
“(I)f the employer had actual knowledge that the intended act was certain to cause such injury and knowingly disregarded this certainty of injury.”
An example of this may occur when an employee complains of the failure of a safety device and the employer makes them do the job anyway, and the worker dies as a result of the failed safety device.
What if there are no dependents?
Georgia code also considers what to do when a person dies without dependents. If an individual doesn’t have dependents at the time of their death, then the employer/insurer must pay the State Board of Workers’ Compensation $10,000 or half of the amount that they would have owed their dependents, whichever is less.
As you can see, death benefits is a very intricate and difficult area of workers’ compensation law. If you have any questions about death benefits, don’t hesitate to contact the attorneys at Gerber & Holder.
