Over the last several weeks, I have been releasing a series of articles on North Carolina Workers’ Compensation Death Claims. This series addresses the following five over-arching issues:

  1. Whether the underlying accident or occupational disease is compensable.
  2. Whether the accident or occupational disease caused the resulting death.
  3. What benefits are owed?
  4. To whom are the benefits owed?
  5. How are the benefits to be distributed?

This article analyzes to whom benefits should be paid in the event of a compensable death claim.

North Carolina General Statute § 97-38 recognizes three categories of potential beneficiaries:

  1. People wholly dependent on the deceased employee.
  2. People partially dependent on the deceased employee.
  3. Next of kin of the deceased employee.

Persons wholly dependent for support upon the earnings of the deceased employee at the time of the accident shall be entitled to receive the entire compensation payable share and share alike to the exclusion of all other persons.

A widow, a widower and/or a child shall be conclusively presumed to be wholly dependent for support upon the earnings of the deceased employee and shall be entitled to receive benefits for the full periods specified.

All other questions of whole dependency are questions of fact that are decided on a case by case basis.

If there is only one person wholly dependent, then that person shall receive the entire compensation payable. If there is more than one person wholly dependent, the benefits shall be divided among them.

If there is no person wholly dependent, then any person partially dependent for support upon the earnings of the deceased employee at the time of the accident shall be entitled to receive a weekly payment of compensation. The amount of the compensation is limited to the extent of partial dependency. Therefore, if it was determined that someone was 50% partially dependent on the deceased employee, that person would only receive 50% of the benefits that a wholly dependent person would receive.

If there is no one wholly dependent and more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency.

If the deceased employee leaves neither whole nor partial dependents, then the compensation which would be payable under G.S. 97-38 to whole dependents shall be commuted to its present value and paid in a lump sum to the “next of kin.

“Next of kin” shall include only child, father, mother, brother or sister of the deceased employee,

  • Including: adult children, adult brothers or adult sisters of the deceased,
  • Excluding: a parent who has willfully abandoned the care and maintenance of his or her child and who has not resumed their care and maintenance at least one year prior to the first occurring of the majority or death of the child and continued their care and maintenance until their death or majority.

If the deceased employee is not survived by any whole dependents, partial dependents, or next of kin, then no indemnity compensation shall be paid. Liability will be limited to burial costs not exceeding $10,000.00, and to any medical costs incurred as a result of the injury by accident or occupational disease that led to the death.

Defendants may take the following steps to try to determine the correct beneficiaries:

  • Discovery Requests
  • Obtain deceased employee’s death certificate
  • Obtain affidavits from family members
  • Obtain birth certificates of family members
  • Participate in a Dependency Hearing in front of the Industrial Commission
  • Obtain an Opinion and Award from the Industrial Commission regarding dependency

Properly determining the correct beneficiaries prior to issuing payment is vitally important to try to minimize the risk of incurring additional payments should new beneficiaries later be discovered.

The next and final article of this series will analyze how death claims benefits are distributed.