Across the United States, thousands of people each year are involved in an accident at work, and many of these may cause life-changing or even fatal injuries. North Carolina is no exception. In 2017 alone, 35 people died in work-related accidents, according to the State of North Carolina Department of Labor. The death of a worker in an on-the-job accident can have a devastating financial impact on the family members in addition to causing overwhelming emotional and psychological pain. However, the family may be able to recover workers' compensation death benefits to help alleviate the economic strain after a loss.
Although it may appear that all deaths that occur on the job should be compensable, the employer or the employer’s insurance carrier may find reasons to dispute the validity of your claim. One of the most common defenses raised is that the death did not arise out of or in the course and scope of employment. For example:
- If a worker is killed by a lightning strike or is shot and killed on the job, the insurance company might try to deny worker’s compensation benefits.
- Where the worker already has a worker’s compensation claim then dies as a result of an infection following surgery, or even in a car accident driving to his or her surgery, the insurance company will often argue that the death was not compensable as a worker’s compensation claim.
We have handled cases like these and won. This is where experienced legal assistance comes into play. If a loved one died due to the negligence of their employer, then Riddle & Brantley can help you understand the workers compensation death benefits process and fight for the benefits you deserve.
Who Can File A Claim for Workers Compensation Death Benefits?
Wrongful death claims arising out of workplace accidents are covered by the Workers’ Compensation Act (North Carolina General Statute § 97-38) and fall under the jurisdiction of the North Carolina Industrial Commission. The law states that if death results from a compensable injury or occupational disease, then within six years thereafter, or within two years of the final determination of disability, whichever is later, death benefits shall be paid to the whole dependents of the deceased worker. If there are no whole dependents, then the benefits may go to partial dependents, or to the deceased person’s next of kin.
At Riddle & Brantley, we sometimes see disputes over which relative or relatives should receive worker’s compensation death benefits. This commonly involves:
- Stepchildren
- Children that are not legitimized
- Spouses who have separated or divorced
- Other disputes over next of kin
We have seen people doing whatever they can to try and claim to be kin to the deceased after their death. We do not shy away from litigating these issues and we have a very successful track record in representing our clients and proving them to be the true legal beneficiaries of the deceased worker. Recently, we successfully helped a child recover death benefits where the child did not have a father listed on the birth certificate and there was no child support order in effect, but where we were able to produce text messages and other evidence where the deceased worker had acknowledged fatherhood of the child.
Another common issue we see is insurance companies delaying paying out benefits, and families needing their money right away to pay funeral expenses or to raise their children. In death claims, a widow or widower or child is conclusively presumed to be dependent, but there are often complications that may cause a dispute or delay in payment of those benefits. If there is a minor involved, the Industrial Commission appoints a Guardian Ad Litem to protect the best interest of the child and ask them to make a recommendation as to whether there is a parent or other person who can be relied upon to use the benefits for the child’s best interest. The Guardian Ad Litem needs to be proposed to the Industrial Commission on a Form 42.
How Are a Workers Comp Death Benefits Distributed?
In most cases, the death benefits are paid over a period of just 500 weeks. Additionally, the amount is two-thirds of the employee’s average weekly wage. On top of death benefits, the worker’s compensation carrier will pay for accident-related medical expenses and up to $10,000 in burial expenses.
Special circumstances can also affect the payment of workers comp death benefits. If a disabled spouse survives the employee, then the compensation payments will continue for the lifetime of the spouse or until remarriage. Additionally, compensation payments to a dependent child will continue until the child reaches the age of 18 or for the duration of 500 weeks, whichever is longer.
Death benefits are normally paid every week; however, sometimes the case settles with a compromise settlement agreement for a lump sum or structured settlement. A structured settlement generally involves a lump sum payment up front, with periodic payments following. These periodic payments can be payable weekly, monthly, annually or in other increments. The Industrial Commission will carefully scrutinize any settlements involving death benefits, especially when the beneficiaries include minors or disabled spouses. The structured settlement must be set up correctly to ensure that the payments are not subject to taxes.
Are Wrongful Death Claims Different for Independent Contractors?
Another defense commonly raised to bar recovery is that the employee was actually an independent contractor and therefore not covered under workers compensation. We see this defense a lot in construction and manual laborer jobs, where misclassification may be more prevalent. Even in death claims where the insurance carrier admits that it is compensable, there can often be disputes over the proper legal beneficiaries.
Our North Carolina wrongful death attorneys can help you fight for your right to compensation. Alternatively, if the fatal workplace accident did involve an independent contractor, then you may be able to file a regular personal injury claim against the employer or other liable party. This is called a third party claim. In either case, we can investigate all of your options for recovery.
Questions About Workers Compensation Death Benefits? Contact Us Today
In any case where death occurs on the job, we strongly urge you to talk to our experienced workers compensation lawyers as early as possible. It is crucial to interview witnesses and to preserve evidence as soon as possible. We have 2 North Carolina Board Certified Attorneys in Workers’ Compensation Law with over 20 years of experience. They can direct the investigation, obtain all OSHA reports and any other information in an effort to maximize the recovery for the legal beneficiaries.
In some cases where death occurs, we have been able to prove through our investigation that the employer violated a safety rule that contributed to the accident. If an OSHA penalty is issued, you can also apply for a 10% increase in benefits, so this can be an important issue to keep track of. It is an issue that many people would never know to look for. The North Carolina workers compensation death benefits lawyers at Riddle & Brantley have years of experience in representing family members who have lost a loved one to an accident on the job.