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When Death Is the Beginning

What happens when employees die on the job?

November 16, 2021 Photo

The death of an employee is certainly a difficult matter for an employer, even when the employee’s death happened away from the workplace and was in no way related to work. However, as grisly as it may seem to contemplate, employees do sometimes die at work or as a result of a work accident or injury.

In looking at these unfortunate eventualities for many businesses, we need to consider whether the employee’s death is compensable, what sort of presumptions exist under the law, who may receive benefits, and what benefits are payable and for how long.

As the workers’ compensation system is state-based, laws surrounding death claims can vary. The following will use Georgia law as an example to explore the handling of death claims, but employers and insurers should consult with laws in their state for the particulars of their claims.

Compensability of a Death Claim

In Georgia, an employee’s death must arise out of and in the course of employment to be compensable, which is the same standard a back injury or an arm fracture must meet to be deemed compensable.

If an employee is found dead in a place where she might reasonably have been expected to be in the performance of her duties—i.e., the deceased employee was in the course of her employment and the precipitating cause of death is unknown—then there is a rebuttable presumption the death arose out of employment. Consider this example: A truck driver is found dead in a parking yard of her employer, next to the opened door of her truck. Her body is riddled with bullet holes, but how she was shot (the precipitating cause) is not known. Under such a scenario, the rebuttable presumption that the death arose out of the deceased employee’s employment is activated.

The burden of proof in a case involving an employee death is the same as that in a nonlethal injury case, such as a knee contusion or a head injury: There must be a preponderance of competent and credible evidence that the employee’s death arose out of and in the course of employment. Because the deceased employee is not available to give testimony or prove the compensability of the accident, that burden rests with “the claimant,” which is usually a spouse or other dependent family member. 

Who Is a Dependent?

The second most pressing question in a claim involving a deceased employee is, “Who is eligible to recover benefits?” A “dependent,” for purposes of the Georgia Workers’ Compensation Act, is simply one who looks to another for support or one who is dependent on another for the ordinary necessities of life to which she has become accustomed. Most often, a claimant-dependent is a member of the deceased employee’s immediate family and/or immediate household. However, one need not be a member of the immediate family or immediate household to be considered a dependent.

For a spouse to be deemed a dependent, there must be a valid marriage and the spouse must have been living with the deceased employee for a period of 90 days prior to the deceased employee’s accident. State law may vary around this issue. For example, Georgia does not recognize common law marriage, nor does it recognize a live-in girlfriend or boyfriend as a dependent.

Dependent minor children include those naturally born to the deceased employee, those conceived during the marriage of the deceased employee, and adopted children of the deceased employee. Surviving children with disabilities, regardless of age, may be deemed dependent for as long as they remain unable to be self-supporting, even if that is a lifetime. A deceased employee’s stepchild who resides in the same household may be considered “dependent” as well.

What Benefits Are Owed?

Assuming an employee’s death is compensable and dependents are identified, benefits payable to a dependent take these forms: (1) weekly dependency benefits; (2) burial expenses up to $7,500; and (3) the reasonable expenses of the deceased employee’s last illness.

Weekly dependency benefits payable to a dependent are determined in the same manner as weekly income benefits for a nonlethal injury payable to the injured employee. There is a maximum and minimum weekly benefit rate; as of July 1, 2019, the maximum is $675 per week and the minimum is $50 per week.

Burial expenses are limited to the actual costs, not to exceed $7,500. That sum may be far less than what is needed to cover the costs of an elaborate funeral and burial, whereas it is more than sufficient for cremation in other instances.

The reasonable expenses of the employee’s last sickness include expenses by first responders, an ambulance, hospitalization, and even hospice care.

If the deceased employee has no dependents, the employer/insurer is obligated to pay the sum of $10,000 to the Georgia State Board of Workers’ Compensation.

How Long Are Benefits Owed?

In non-catastrophic claims involving a nonlethal injury, the maximum income benefit exposure in Georgia is 400 weeks from the date of accident. In a death claim, the maximum exposure is more fluid.

In the case of a surviving spouse, a widow or widower may recover weekly dependency benefits until she reaches the age of 65 years or for a period of 400 weeks, whichever of the two provides the greater amount of benefits. Weekly dependency benefits payable to a spouse will be terminated upon the remarriage of the spouse. Those benefits may also be suspended in the event the spouse engages in a “meretricious relationship” where a couple lives together as if they are married.

As for minor children, weekly dependency benefits are payable until the age of 18 years if the child is no longer enrolled in school. If the child is enrolled in an institution of higher learning at 18 years old, those dependency benefits will continue beyond the 18th birthday so long as the child is enrolled in the institution of higher learning, up to 22 years of age. If a minor child marries, then she is no longer considered dependent. A disabled minor or adult child who is incapable of earning a livelihood may be entitled to weekly dependency benefits far into adulthood. 

Defenses and Best Practices

As in all on the job injuries, investigation is key, and the sooner it is implemented, the more likely defenses may be identified and exposure limited. The same holds true in a claim involving a deceased employee. Although, in such a case, the deceased employee is not available to provide a firsthand account of the accident and the injuries emanating therefrom. Investigation must be creative and expansive as a result.

The determination of the cause of death is essential. Oftentimes, given the age of the deceased employee or the circumstances of the death, the county medical examiner may take custody of the body, perform an investigation, and conduct an autopsy. In Georgia, the employer/insurer may also seek an order for an autopsy from the State Board of Workers’ Compensation. The determination of the precipitating cause of death is crucial as well.

Interviews of witnesses and co-workers are especially important. Close friends outside the workplace should be identified and interviewed as well. Do not shy away from interviewing the deceased employee’s immediate family either, as this is helpful in determining potential dependents.

A thorough investigation of the accident and death, as well as a meaningful examination of the employee’s life and family, are often the necessary crux to identify defenses and minimize exposure. 

About The Authors
Multiple Contributors
Traci Teer

Traci Teer is a senior attorney practicing workers’ compensation defense at Swift, Currie, McGhee & Hiers, LLP. traci.teer@swiftcurrie.com

Joanna Hair

Joanna Hair is an attorney for Swift, Currie, McGhee & Hiers, LLP.  joanna.hair@swiftcurrie.com

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