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Workers' Compensation Death Benefits

Losing a spouse or parent to an occupational injury or illness is a tragedy no one should have to endure. It’s compounded by the fact that oftentimes, the deceased was key to the financial stability of the household, and the loss of their income and other contributions is an especially difficult blow.

Thankfully, MGL ch. 152 § 31 provides for death benefits to surviving spouses and dependent children who lost a provider due to an occupational accident.

At The Law Offices of Jeffery S. Glassman, our compassionate workers’ compensation attorneys will work to shore up your economic future. We believe surviving spouses and children in their grief should receive support. Workers’ compensation payments are generally modest, but they can make a huge difference for surviving family members of workers killed on-the-job.

Death benefits cover:

  • Up to $4,000 in burial expenses
  • Weekly benefits equaling two-thirds of decedent’s average weekly wage (with limitations) as long as there is no remarriage and widow/widower remains “dependent”
  • $60 weekly to each eligible dependent child upon spouse’s remarriage
Who Qualifies for Workers’ Compensation Death Benefits?

If a work-related injury or illness results in the death of a worker, the insurer is required to pay the dependents of that employee. These include:

  • Spouse
  • Children
  • Children by a former spouse

This may seem relatively straightforward, but it can complicated when spouses are estranged, or when children or adults or when the insurer disputes the cause of worker’s death or entitlement to benefits based on exemptions within workers’ compensation law.

Worker Eligibility

One of the key determinations of whether death benefits will be available is whether the worker in life would have been eligible to receive workers’ compensation.

That requires showing injury arose out of and occurred in the course of employment, and that worker was not exempt from benefits.

The good news is almost all workers are covered by workers’ compensation in Massachusetts. This is regardless of:

  • How many hours they worked
  • Whether employer paid them cash “under the table”
  • Whether they were U.S. citizens or not
  • Whether they were illegal immigrants

The one commonly-cited exception is workers who are independent contractors. It is true independent contractors are not entitled to collect benefits, and nor would their spouses or children in the event of their death.

However, it’s been estimated by the Department of Industrial Accidents that as many of 13 percent of all employers in Massachusetts misclassify at least some workers as independent contractors when they are, in fact, employees. So regardless of what the employer’s records indicate, it’s worth it in the event of a worker’s death to explore whether that label accurately describes the worker’s true role.

Other Requirements

State statute provides for workers’ compensation death benefits for surviving spouses for so long as they are:

  • Alive
  • Unmarried
  • Not fully self-supporting

For the first 250 weeks (almost five years) after the worker’s death, the surviving spouse is automatically deemed “not fully self-supporting.” However, after that time, the insurance company can petition an administrative law judge with the Department of Industrial Accidents for termination of benefits on grounds surviving spouse is now self-supporting.

The administrative law judge will make this determination based on:

  • Spouse’s lifestyle
  • Claimed expenses
  • Reasonableness of expenses
  • Income and income history

There have been some court cases that clarify the meaning of “fully self-supporting” in Massachusetts. Although there is no brightline rule, the Department of Industrial Accidents held in the 1996 case of Marconi v. Crusader Paper Co. that widows and widowers accustomed to a higher standard of living should be allowed more chance to achieve higher earnings before being deprived of their benefits.

Further, the judges in a 2006 case ruled that only earnings or investment income may be considered in the calculations – not benefits from Social Security Disability Insurance or pension from an employee benefit plan.

What Are the Death Benefits?

In addition to the $4,000 in burial expenses, death benefits to spouses allow for two-thirds – or 66.67 percent – of the decedent’s average weekly wage, up to the weekly maximum rate set by the state at the time of worker’s death.

The maximum weekly rate is set annually on Oct. 1. As of Oct. 1, 2015, the maximum weekly rate was $1,214.99.

A worker’s average weekly wage is:

  • Sum of total gross earnings
  • Add in bonus pay or overtime
  • For 52 weeks prior to injury date
  • Divide by 52 (or number of weeks worked)
  • Multiply average weekly wage by .66.67

If there is no surviving spouse, minor children and/or other dependents would equally share the compensation benefits.

Contact the Law Offices of Jeffrey S. Glassman today for a free and confidential consultation.

Call (617) 367-2900 – NO FEE UNLESS SUCCESSFUL

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