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  • NC Workers’ Comp Death Claims and Benefits

    Posted on July 1, 2022 by in NC Workers' Compensation

    There are few tragedies more profound than the loss of a loved one.  Such a loss is, of course, a terrible event for any family member to endure, no matter the circumstances.  Unfortunately, some do lose loved ones in North Carolina to on-the-job accidents and from work-related illnesses or diseases.  In addition to the emotional pain inherent in such a loss, the surviving family of a deceased employee often suffers a severe economic and monetary loss, as well.  The purpose of this post is to provide a basic level of information about NC death claims and corresponding benefits under the workers’ compensation law of North Carolina, including information about the timing of benefits that should be paid, and who should receive such compensation

    When is a death covered under workers’ compensation in North Carolina?

    To be covered under workers’ comp in NC, a worker’s death must satisfy two requirements: (1) the death must be related to a “compensable” (covered) work injury or disease; and (2) the work-related death must happen within a specified period of time.

    The person or persons claiming benefits must demonstrate that the employee’s death was related to an injury by accident or occupational disease that is, itself, covered by the North Carolina workers’ compensation law.

    The work-related injury or illness does not have to be the exclusive cause of the employee’s death. Death benefits under NC workers’ compensation may be allowed when a covered work injury or occupational disease significantly contributes to the death, even when there are other contributing factors.  Likewise, benefits may be paid when the injury or disease worsens or aggravates a previously existing condition, which, in turn, causes the employee’s death.  Notably, a worker’s death from a heart attack may be covered under workers’ comp in North Carolina if the heart attack is caused by unusual exertion or extreme conditions, or when a covered accident or occupational disease contributes to or accelerates the heart attack.

    In some circumstances when an employee dies as the result of an accident that happens in the course and scope of the employee’s work, the death may actually be presumed “compensable” under NC workers’ compensation law, even if it is not clear, precisely, what happened.  This legal concept is embodied within the “Pickrell Presumption,” which applies in North Carolina when the cause of the death is unknown, and when the circumstances of the accident are unexplained.

    To be covered under workers’ compensation in NC, a death must happen within the latter of (1) six years from the date of an injury by accident (or onset of disability related to an occupational disease); or (2) two years from a “final determination of disability.”  In general, a “final determination of disability” is an Order entered by the North Carolina Industrial Commission that addresses the injured worker’s disability, such as the approval of a workers’ comp rating or a compromise settlement agreement.

    The workers’ compensation system in NC usually does not allow compensation when a workplace death results from suicide, or from an employee’s intentional effort to injure or kill himself or herself.  However, when an employee becomes severely depressed or otherwise loses his or her normal judgment because of a condition covered by the NC workers’ comp law, and when the employee subsequently commits suicide, then death benefits may be allowed under NC workers’ compensation law.

    Notice and Filing Requirements for NC Death Benefits Claims

    A deceased worker’s family, estate, or next of kin should notify the employer within thirty (30) days of a work-related death, even if the employer already knows about the accident, disease, and/or death. This should be done by filing a NC Industrial Commission Form 18 Notice of Accident (or Form 18B in the case of lung disease) with the NC Industrial Commission.  A copy should be sent to the employer.  An NC death claim under the NC Workers’ Compensation Act is barred forever if the claim is not filed with the NC Industrial Commission within two (2) years of the date of death.

    Employers in North Carolina must give notice to the NC Industrial Commission within five days of becoming aware of a potentially covered death by filing a Form 19. Employers are also required to make efforts to identify potential beneficiaries and to file a Form 29 reporting their findings with the NC Industrial Commission within 45 days.

    An NC workers’ compensation death claim is separate from an injured employee’s own claim for workers’ compensation benefits.  So defenses that might defeat the employee’s claim, such as an employee’s failure to timely file his or her own claim, will not defeat a later-arising North Carolina workers’ compensation death claim filed by the employee’s family.

    The payment of benefits for a workers’ comp death claim in North Carolina should be made by the employer or its insurance company pursuant to Industrial Commission approval.  When there is a question as to who is entitled to benefits the employer or its insurance company, or any person claiming the death benefits should file a Form 33 Request for Hearing with the North Carolina Industrial Commission to request a determination of that issue.

    Who receives the Benefits in a North Carolina Death Benefits Claim?

    The rules in determining who is entitled to receive NC workers’ compensation death benefits are difficult, complicated, and subject to numerous exceptions. Nonetheless, a few key principles are of note.

    If there are people who were “wholly dependent” on the deceased employee’s income, then those people share the death benefits equally, to the exclusion of everyone else.  When there is only one such person who is wholly dependent upon the deceased worker at the time of death, then that person takes all of the workers’ comp death benefits that are payable.  Otherwise, all “whole dependents” share the death benefits equally.

    Certain people are assumed to be wholly dependent merely because of their relationship to the deceased employee. A widow, widower, and a minor child of a deceased employee are considered “wholly dependent” as a matter of law. “Widow” and “widower” mean the deceased employee’s spouse who is living with the deceased worker, or dependent on the deceased worker for support, at the time of death, or living apart for justifiable cause or by reason of desertion.   A deceased employee’s surviving “child” includes offspring under 18 years of age and includes an adopted child and a child born after the employee’s death.  Child also includes a stepchild and an acknowledged illegitimate child that is dependent upon the deceased worker at the time of his or her death.  Other claimants to workers’ compensation death benefits in North Carolina must prove actual, total dependency on the deceased employee at the time of death in order to receive death benefits as a “wholly dependent” person.

    When an employee dies in NC leaving no one who qualifies as wholly dependent, then any person or persons who are partially dependent are entitled to share the NC workers’ comp death benefits, based on the amount of support provided to them by the decedent.   If there are no whole or partial dependents of the deceased worker, then the benefit that would have been paid in the event the deceased employee had left dependents is distributed in lump sum to the “next of kin.”  If the deceased employee leaves neither dependents nor “next of kin,” then only the burial benefit is paid.

    Payment of Benefits in a Workers’ Comp Death Claim

    Benefits in death claims, as in other workers’ comp claims in North Carolina, are generally paid on a weekly basis.  The amount of the weekly death benefit represents two-thirds of the deceased employee’s “Average Weekly Wage”.  Burial expenses are paid in an amount up to $10,000.00.

    Death benefits in North Carolina workers’ comp claims are payable for at least 500 weeks.  A minor child receives benefits until he or she reaches the age of 18, even if the relevant period of time exceeds 500 weeks.  A deceased employee’s widow or widower who is disabled at the time of the worker’s death receives benefits until his or her death or remarriage, but not fewer than 500 weeks. When the beneficiary of a death claim is a minor child or is incompetent, the Industrial Commission will appoint a guardian ad litem to represent the child’s interest.

    If you have questions about a NC death claim in NC workers’ comp, please contact us for your free consultation with our firm.

    As always, if you would like to ask additional questions or take advantage of a free consultation by telephone or in-person, please Contact Bowman Law without delay. If you would like to learn more about the regions we cover, Click Here to View Our Service Areas.

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