Death Cases and Resulting Claims for Benefits: An Overview

This post provides a general overview for handling death cases under the North Carolina Workers’ Compensation Act.  Death cases and the resulting claims can be extremely fact specific so it is always best to discuss specific claims with an attorney.  Below you will find questions to ask as you work through death claims in North Carolina.

First ask – Is the death related to the accident?

No, the death is not related to the accident (NCGS 97-37)

The decedent is entitled to any benefits owed but not yet paid. These will generally be for a PPD rating not yet paid (and maybe even not yet assigned). The employer must determine what those benefits are and file Form 26D with the Industrial Commission.

Yes, the death is related to the injury (NCGS 97-38)

Then Ask – Was the death claim filed within the statutorily defined time limits?

Dependents or next of kin must file death claims within the later of:

Where the claim has been accepted:

• 6 years of the date of injury or
• 2 years of the final determination of disability

Where the claim has yet been accepted: 2 years from the date of death

Is the person(s) filing the death claim entitled to death benefits?

Much of the litigation around death claims arises in determining WHO is entitled to the deceased employee’s benefits provided that the requirements above are met.

1. The Act first looks to the decedent’s dependents (whole and partial) to be entitled to benefits.

Presumed Dependents

Widow, widower and children of deceased: these individuals are conclusively presumed to be whole dependents of the deceased under 97-39 and thus entitled to benefits.

Widow/Widower

Under the Act, widow/widower only includes the decedent’s spouse living with or dependent for support on decedent at the time of death OR living apart for justifiable cause or by reason of decedent’s desertion at such time of death.

Children must be under 18 at time of death

Under the Act, children include:

• Posthumous Child (born after death of decedent);
• Child legally adopted prior to the injury
• Stepchild or acknowledged illegitimate child actually dependent on the deceased

But does not include:

• Married children UNLESS wholly dependent on the deceased.

Actual Dependents

All other cases of dependency are questions of fact with regards to the facts at the time of accident.  Dependency on the decedent must have existed 90 days prior to the accident.

Partial Dependents

Partial dependents are only entitled to benefits if there are no whole dependents of the decedent.  Whether a person is a partial dependent is a question of fact and the dependency must have existed 90 days prior to the date of accident.

2. If there are no dependents, then the next of kin is entitled to benefits.

Next of Kin

If there are no whole or partial dependents, then next of kin as defined in NCGS 97-40 are entitled to the compensation commuted to present value and payable in one lump sum.  Next of kin includes only child, father, mother, brother or sister of the deceased employee, including adult children or adult brothers or adult sisters of the deceased, but excluding a parent who has willfully abandoned the care and maintenance of his or her child and who has not resumed its care and maintenance at least one year prior to the first occurring of the majority or death of the child and continued its care and maintenance until its death or majority.

3. If there are no dependents or next of kin, then only burial expenses are due.

Burial Expenses

• Date of Death before June 24, 2011: Actual burial expenses up to $3,500
• Date of Death on or after June 24, 2011: Actual burial expenses up to $10,000

What benefits are the claimants entitled and for how long?

If the death is related to the injury or occupational disease and the claim is filed within the statutorily defined time limits, then the dependent(s) are entitled to:

1. Actual funeral expenses: Up to $3,500 in funeral expenses if the date of death is before June 24, 2011 and up to $10,000 in actual funeral expenses if the date of death is on or after June 24, 2011.
2. 2/3 of the employee’s average weekly wages at the time of the accident. (Still subject to the statutorily defined maximum comp rate at the time of the accident and no less than $30 per week.)

Dividing Benefits

1. Whole Dependents: Presumed dependents and actual dependents proven under the statute are entitled to 2/3 of the employee’s average weekly wages at the time of the accident for 500 weeks, subject to the minimum and maximum amounts per week. (400 weeks if the date of death was prior to June 24, 2011.) All whole dependents divide the weekly amount equally. If there are whole dependents, partial dependents are not able to collect any benefits.
2. If one of the whole dependents dies before the 500 (or 400) week time period ends, the payments to the remaining dependents are recalculated.
3. If there are no whole dependents (presumed or actual), partial dependents are entitled to the percentage of support provided to the partial dependent from the decedent’s annual earnings at the time of the accident.

Extending Beyond 500 (or 400) Weeks

1. If the decedent’s spouse is unable to support him or herself because of physical or mental incapacity at the time of the decendent’s death (as opposed to the date of accident), the spouse is entitled to their share of benefits for the remainder of his or her life or until he or she remarries.
2. Children who do not reach the age of 18 before the 500 (or 400) week time period ends, will continue to receive their share of benefits until the reach the age of 18.

Death cases and the resulting claims are extremely fact specific.  Issues like frozen embryos, mental incapacity of a spouse that occurs after the accident but before an employee dies, and children born after the accident but before death are just a few examples that require a close examination of the facts.