Over the next several weeks I will be releasing a series of articles on North Carolina Workers’ Compensation Death Claims.  The articles will address 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 the second issue that an adjuster or an attorney should ask themselves – whether the accident or occupational disease caused the resulting death.

If it is determined that the Employee sustained an injury by accident or occupational disease, during the course and scope of his employment with the insured, you must then investigate whether the death resulted from the accident/occupational disease.  Part of this determination overlaps with the first issue and procuring an autopsy and an Order to preserve evidence will assist in answering this question.

There are two components to making this determination.  The first is a proximate cause issue, and the second is a timing issue.

To resolve the proximate cause issue, you must ascertain whether there was an intervening event that caused the death.  It is important to conduct a thorough analysis of the medical records, coroner’s report, death certificate, autopsy, and any other preserved documentation, to try to determine whether the death was proximately caused by the accident or occupational disease.  Even after scrutinizing all of this documentation, it still may be unclear whether the accident or occupational disease caused the death.  The written or deposition testimony of a medical provider may be necessary to make a determination regarding proximate cause.

If it is determined that the accident or occupational disease was the proximate cause of the death, the analysis must turn to the timing issue.  If death results proximately from a compensable injury by accident or occupational disease, the death still must occur within six years of the initial incident, or within two years of the final determination of disability, whichever is later, in order for the death to be compensable.

As an example, if an injury by accident occurred on Jan. 1, 2015, a final determination of disability was made on Jan. 1, 2020, and the employee ultimately died as a result of the accident on Nov. 5, 2021, then the death would be compensable.  This is because even though the death occurred more than six years after the accident, it occurred within two years of the final determination of disability.  However, in this same scenario, if the death occurred on Jan. 2, 2022, the death would not be compensable, as it would have occurred more than six years after the accident, and more than two years after the final determination of disability.

Making a determination as to whether an underlying accident or occupational disease is compensable, and if so, whether a death is compensable, are very important issues that must be resolved prior to accepting the compensability of a death claim.

In the next edition of this series, I will analyze what benefits are owed under the North Carolina Workers’ Compensation Act as the result of a death claim.