Topic:
WORKERS' COMPENSATION; BENEFITS (GENERAL); DEATH;
Location:
WORKERS' COMPENSATION;

OLR Research Report


March 16, 2000

 

2000-R-0346

WORKERS' COMPENSATION DEATH BENEFITS

AND ABILITY OF ESTATE TO SUE EMPLOYER

 

By: Laura Jordan, Associate Attorney

You asked what workers' compensation death benefits consists of, who receives the benefits, and under what circumstances the estate of a deceased worker may sue a deceased worker's employer for negligence.

SUMMARY

Workers' compensation death benefits consist of (1) a $4,000 burial fee, (2) a weekly cash payment of 75% of the deceased worker's average weekly take-home pay for the 52 weeks preceding the injury up to a statutory maximum (Currently $792. Benefits are subject to an annual cost of living adjustment.), and (3) any medical expenses incurred by the deceased prior to death, up to maximums specified in a medical fee schedule set by the Workers' Compensation Commission.

The burial fee is paid to the surviving spouse or other dependent. If no dependent exists, the fee is paid to any individual responsible for funeral costs. Weekly cash payments are paid to a surviving spouse or other eligible dependent.

Payments are not payable to individuals who are not financially dependent on the deceased worker. If a worker dies due to a work-related injury and leaves no surviving dependents, the employer is not liable for the cash payments. For example, if the only surviving relatives of a deceased worker who dies from a work-related injury are financially independent siblings and parents, the employer is not liable for payments.

As described in greater detail below, the surviving spouse receives benefits until death or remarriage, after which surviving dependent children receive the benefits until age 18 or 22, depending on whether they attend school full-time. Other dependents, such as financially dependent parents, receive benefits for a maximum of 312 weeks.

It is possible, but extremely difficult for a deceased worker's estate to sue an employer for negligence. The Workers' Compensation system serves as a substitute for the court system and provides employees with an “exclusive remedy” for work-related injuries. Under the Workers' Compensation Act employers are immune from civil actions such as negligence lawsuits (CGS 31-284), but they are held strictly liable for work-related injuries. The Act eases employees' burden of proof. They need only prove that an injury is work-related and they are immune from traditional employer defenses such as contributory negligence and assumption of risk.

The state Supreme Court carved out an exception to the exclusive remedy rule where an employer has willfully or intentionally caused the worker's injury or death (Jett v. Dunlap, 179 Conn. 215 (1979)). However, no employer has ever been found liable under this court-created exception in Connecticut. Courts in other states have held employers liable under similar exceptions to the exclusivity rule (See Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907 (W. Va. 1978); and Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608 (1982)).

DEPENDENTS' DEATH BENEFITS

The deceased worker's dependents are entitled to a pro rata portion of the total death benefit compensation rate which is equal to 75% of the worker's average weekly take-home pay as calculated as of the date of the fatal injury up to a maximum set in state law (currently $792 a week).

State law recognizes (1) presumptive dependents and (2) dependents-in-fact as the only two types of dependents that have a right to share the weekly cash payment benefit.

Presumptive Dependents

Those who are conclusively presumed to have been the deceased worker's dependents include:

1. his spouse who lived with him at the time of the injury or who regularly received his financial support;

2. any child under age 18, and any child over 18 who is physically or mentally incapacitated and unable to work, who lived with the deceased parent at the time of the injury, or who regularly received support from him at the time of the injury; and

3. any unmarried child who has reached age 18, but is younger than age 22 and is a full-time student who lived with the deceased parent or regularly received support from him at the time of the injury, but any child who has reached age 22 while a full-time student but who has not completed the requirements for, or received, a degree from a postsecondary educational institution is deemed not to have attained age 22 until the first day of the first month following the end of the quarter or semester in which he is enrolled at the time, or if he is not enrolled in a quarter or semester system, until the first day of the first month following the completion of the course in which he is enrolled or until the first day of the third month beginning after this time, whichever occurs first.

If there are one or more presumptive dependents, the death benefits are payable to them in the following manner.

1. If the surviving spouse is the sole presumptive dependent, compensation is paid until death or remarriage occurs.

2. If there is a presumptive dependent spouse and one or more dependent children, all of whom are either children of the surviving spouse or are living with the surviving spouse, the entire compensation is paid to the spouse in the same manner and for the same period as if he were the sole dependent.

3. If there are children, any of whom are neither the child of the surviving spouse nor living with him, the total compensation is divided into as many parts as there are presumptive dependents. Those shares which represent children of the surviving spouse or children living with the surviving spouse are payable to the spouse along with his own share. The share of a dependent child who is not the child of the surviving spouse and is not living with him is paid to the child's parent or legal guardian or to anyone else for the child's benefit as the workers' compensation commissioner directs.

4. If the compensation being paid to the surviving spouse terminates by death or remarriage, or if there is no presumptive dependent spouse at the time of injury, but at either time there is one or more presumptive dependent children, compensation is paid to the children as a class, each child sharing equally. Each child in the class receives their share until they are age18, unless the child remains an unmarried, full-time student as described above or is physically or mentally incapacitated and is unable to work. When a child's participation ceases, his share is divided among the remaining dependent children.

Dependents-In-Fact

If there are presumptive dependents, no compensation is payable to a dependent-in-fact. If there are no presumptive dependents, but there are one more persons wholly dependent-in-fact upon the decedent, the compensation is divided according to their relative degree of dependence. If compensation is paid to those wholly dependent-in-fact, it is paid at the deceased worker's full comp rate.

If compensation is paid to individuals who are partially dependent-in-fact, the weekly benefit is $20 per week or the amount per week actually contributed by the decedent to their support, whichever is greater. To the class of partial dependents, the biweekly benefits cannot equal more than the deceased worker's full benefit rate. Compensation payable to dependents-in-fact, whether wholly or partially dependent, is limited to 312 weeks from the date of the employee's death.

Whether someone is a dependent-in-fact is determined by the facts at the time of the fatal injury. The test is based on three elements:

1. reliance on the contribution of the decedent for necessary living expenses;

2. a reasonable expectation that such contribution would continue; and

3. an absence of sufficient means at hand for meeting such living expenses.

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