Death Benefits Under Workers Comp

Louisiana workers compensation offers death benefits to family members of workers killed in on-the-job accidents.

If the deceased worker had a family, then the deceased worker’s family is entitled to weekly or monthly benefits according to the specifics of each case, or possibly a single, one-time payment of $75,000.00, as well as money to cover funeral and burial expenses.

These death benefits are only for injuries causing death within two years after the last treatment resulting from the accident.

Beneficiaries of Louisiana Workers Compensation Death Benefits in Fatal Work Accidents

Louisiana workers compensation entitles surviving family members of a deceased worker to financial support if the worker was killed in a work-related accident.

The surviving spouse of a deceased worker who was living with the worker at the time of death is automatically considered a dependent under the law. This surviving widow or widower will continue to receive benefits for life or until remarriage.

Also, children of a deceased worker who are under the age of 18, disabled, or are full-time students under the age of 23, are automatically considered dependents under the law. These dependent children who are not disabled will continue to receive benefits until age 18 or up to 23 for those who attend college.

Other family members of a deceased worker may be considered dependents if they actually relied on the worker’s income and were actually dependent on the deceased worker at the time of the accident.

So again, Louisiana law specifically provides workers compensation death benefits, in the form of a percentage of the deceased person’s Average Weekly Wage — plus a one-time funeral benefit — to be paid to:

1. The deceased worker’s spouse living with the worker at the time of the accident and death;
2. The deceased worker’s children who are under age 18;
3. The deceased worker’s children who are full-time students in an accredited educational institution and are under the age of 24;
4. The deceased worker’s children who are physically or mentally incapacitated from earning; and
5. Any other individuals who can prove actual dependency on the deceased worker.

Also, if the deceased worker had no dependents, but is survived by biological or adopted children, the children are entitled to a single, one-time payment of $75,000.00.  This $75,000.00 payment is to be divided between the children equally.

If the deceased worker had no dependents and no biological or adopted children, each surviving parent is entitled to a single, one-time payment of $75,000.00.

Wholly Dependent Claimants and Partially Dependent Claimants

Workers compensation dependents are divided into two groups — wholly dependent and partially dependent.

The most important difference between these two groups is the amount of compensation to which they are entitled.

The compensation for wholly dependent claimants is set arbitrarily under Louisiana law, which provides for payment of a designated percentage of the wage earned by the deceased at the time of his death.

Partially dependent claimants, on the other hand, receive compensation as established by a formula in which the amount to which they are entitled depends upon the percentage of the deceased’s wages which were contributed to their support during the year preceding the worker’s death.

Under Louisiana law, wholly dependent individuals (persons who are completely dependent on a deceased worker) are paid in preference to partially dependent individuals (persons who are only partially dependent on a deceased worker).

Dependents who have competing claims to the workers compensation benefits are paid in the following priority: 

1. Spouse and dependent children;
2. Parents;
3. Siblings; and
4. Other dependents.

In order to receive workers compensation benefits, a dependent must be a member of the deceased worker’s family, but Louisiana courts have interpreted “family members” to include non-relatives that reside with the deceased worker.

Death Benefit Amounts and Allocations in Fatal Louisiana Workers Compensation Accidents

The amount of workers compensation death benefits that the dependent of a deceased worker receives depends on the amount of a deceased worker’s weekly wage at the time of his or her death.

The payments to the dependents of deceased workers shall be computed and divided equally among them on the following basis:

1. If the widow or widower alone, then 32.5% of wages;
2. If the widow or widower and one child, 46.25% of wages;
3. If the widow or widower and two or more children, 65% of wages.
4. If one child alone, 32.5% of wages;
5. If two children, 46.25% of wages;
6. If three or more children, 65% of wages;
7. If there are neither widow, widower, nor child, then to the father or mother, 32.5% of wages of the deceased. If there are both father and mother, 65% of wages; and
8. If there are neither widow, widower, nor child, nor dependent parent entitled to compensation, then to one brother or sister, 32.5% of wages with 11% additional for each brother or sister in excess of one. If other dependents than those enumerated, 32.5% of wages for one, and 11% additional for each such dependent in excess of one, subject to a maximum of 65% of wages for all, regardless of the number of dependents.

The total payment to all dependents may not exceed 65% of the Average Weekly Wage or the maximum compensation rate, whichever is lower. 

Louisiana law also provides that the compensation for the surviving spouse and children shall be payable as a single fund to the spouse to be used for the spouse’s benefit and that of the children, and the appointment of a tutor is not necessary for such circumstance.

However, if the surviving spouse is not living with some, or any, of the children, the workers compensation judge will likely appoint a tutor for the children and produce a separate judgment for the child’s share.

The appointment of a tutor has been allowed where there were children by a first marriage and a surviving spouse by a second marriage, and also where the mother of the child claimant had abandoned him and the child was living with relatives at the time of the death of the father.

Calculation Differences Between “wholly Dependent” and “partially Dependent” Claimants in Louisiana Workers Compensation Death Claims

WHOLLY DEPENDENT CLAIMANTS

A claimant who is wholly dependent upon the wages of the deceased is entitled to the maximum compensation provided for his or her dependents.

Proof of dependency must include a showing that the deceased made actual contributions to the support of the dependent. However, once this has been established, the difference between whole and partial dependency is determined by the needs of the claimant and the absence of any other substantial source of support rather than by the proportion of the deceased’s earnings which were provided to the claimant.

If the contributions by the deceased (regardless of whether they constituted all or only a share of the deceased’s earnings) were the only support of the dependent, then the claimant was wholly dependent upon the deceased, and is entitled to compensation in that classification.

Even though the dependent received some small support from sources other than the deceased, the claimant may still be regarded as wholly dependent.

Partially Dependent Claimants

A partially dependent claimant is a claimant who, at the time of the fatal accident, received only a part of his or her support from the earnings of the deceased.

So again, the question is whether the claimant relied entirely on contributions from the deceased, or whether such contributions were one of several sources of support that the claimant was receiving.

A partially dependent claimant lacks two major two advantages that the wholly dependent claimant receives:

1. A partially dependent claimant is entitled only to a portion of the compensation this claimant would receive if he or she were wholly dependent; and
2. A partially dependent claimant will not receive anything if there are enough wholly dependent claimants to take all of the maximum allowable compensation.

Louisiana law lists the method of determining the compensation rate for partial dependents as follows:

“… If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.”

So, for example, take the partially dependent father’s case for death benefits for the death of his son, who earned $720 per week at the time of his accident and death. This decedent’s weekly contributions to his father during the year preceding his death average $240.

In this example, if the father were wholly dependent, the father would receive $234 per week (32.5% of $720).

But since the father is partially dependent, the father would receive $78 per week ($240/$720 = 0.333; 0.333 times $234 = $78).

Again, to calculate, take the pre-death proportion of income paid to the dependent (here 1/3), and then multiple that time what the wholly dependent claimant would receive (32.5% of $720).

Finally, the claimant must make sure that the amount is neither below the minimum amount or above the maximum amount set under the law.

If the amount is below the minimum limit, then the claimant should receive the minimum amount. If the amount is above the maximum amount limit, then the claimant should receive the maximum amount.

Also, if the partially dependent claimant is unable to establish reliably the amount of contributions made by the deceased during the year preceding his death, although it is apparent that some contributions were made, the workers compensation judge will typically award the minimum weekly compensation.

Priorities Among Claimants for Louisiana Workers Compensation Death Benefits

As noted above, under Louisiana law, wholly dependent individuals (persons who are completely dependent on a deceased worker) are paid in preference to partially dependent individuals (persons who are only partially dependent on a deceased worker).

Dependents who have competing claims to the workers compensation benefits are paid in the following priority:

1. Spouse and dependent children;
2. Parents;
3. Siblings; and 
4. Other dependents.

Under Louisiana law, where the claims of all recognized dependents can be satisfied in whole without going over 65% of the deceased’s wages or the statutory maximum, whichever is reached first, then the claims of both wholly and partially dependent persons can be satisfied in full without reference to any ranking or priority.

In other words, until the applicable maximum compensation figure (either 65% of wages or the statutory maximum amount) is reached, compensation will be payable to all the various dependents.

On the other hand, where the total of all claims will exceed the maximum allowable compensation, some or all claims must suffer a reduction in order to avoid exceeding that maximum.

Keeping in mind that claimants are classified both in terms of whole versus partial dependency, and in terms of preference because of family relationship or need, it is clear that several combinations are possible.

In other words, though there are no exclusions, there will be priorities if the maximum compensation is exhausted before all claimants receive their due.

These classifications and priorities are as follows:

1.  All Claimants Wholly Dependent and All in Same Preference Class. For example: a surviving spouse and children; or three siblings. In this case, if the available funds are not enough, then all claimants will be reduced in an equal proportion.

2.  All Claimants in Same Preference Class, but Some Wholly Dependent and Some Partially Dependent. For example: a spouse and two wholly dependent children, and a partially dependent child by a prior marriage. In this case, if the available funds are not enough, the partial dependent will exclusively lose his or her money before the wholly dependent claimants.

3.  All Claimants Wholly Dependent, Belonging to Different Preference Classes. For example: two parents, two siblings. In this case, if the available funds are not enough, the wholly dependent claimants in the preferred classification will receive all of their money before the claimants of the deferred wholly dependent class will receive any money.

4.  All Claimants Partially Dependent, Belonging to Different Preference Classes. For example: two parents, two siblings, all partially dependent. In this case, if the available funds are not enough, the partially dependent claimants in the preferred classification will receive all of their money before the claimants of the deferred partially dependent class will receive any money.

5.  All Wholly Dependent Claimants Belonging to a Preferred Class, and One or More Partial Dependents Belonging to a Deferred Class. For example: a wholly dependent surviving spouse with two children and a partially dependent parent or sibling. In this case, if the available funds are not enough, the partial dependent will exclusively lose his or her money before the wholly dependent claimants. From there, all wholly dependent claimants will be reduced in an equal proportion.

6.  All Wholly Dependent Claimants Belonging to a Deferred Class, and One or More Partial Dependents Belonging to a Preferred Class. For example: two partially dependent children and a wholly dependent parent or sibling. In this case, if the available funds are not enough, the partially dependent claimants in the preferred classification will receive all of their money before the claimants of the deferred class of wholly dependent claimants will receive any money.

However, it critical to remember that these amounts are subject to both the minimum weekly compensation requirement and the maximum weekly compensation amount.

That is, if the money is exhausted before remaining claimants in priority are reached, these remaining claimant, unfortunately, will not receive any compensation.  

But Who Exactly Is a Dependent Under a Death Claim in Louisiana Workers Compensation?

“Child” Defined

There is no distinction in the treatment of children under Louisiana law between legitimate children or illegitimate children of the deceased.

In other words, “child” means the biological (or adopted) child of the deceased.

“Parent” Defined

There is no distinction in the treatment of parents under Louisiana law between legitimate children or illegitimate children.

In other words, “parent” means the biological (or adopted) parent of the deceased.

So, the mother of an illegitimate child informally acknowledged by her and upon whom she was dependent, will be entitled to death benefits under Louisiana workers compensation.

According to Louisiana workers compensation courts, this is because:

1. As a “member of the family household” a mother is at least entitled to claim benefits in the “other dependent member” category “regardless of blood relationship or the technicalities of inheritance law or of acknowledgment or not of illegitimate children”; and
2. If her informally acknowledged illegitimate child would be treated as a “child” rather than as a “dependent member of the family,” then she must be treated as a “mother” and entitled to compensation under that preferred category rather than the other dependent member category.

This is important because not only may the parent of an illegitimate child be entitled to compensation in the “other dependent member of the family category,” but also this parent may be entitled to be treated in the preferred category previously reserved for legitimate relations.

“Sibling” Defined

Under Louisiana law, a “sibling” or a “brother” or a “sister” includes “step-brothers and step-sisters, and brothers and sisters by adoption.”

Also, there is no distinction in the treatment of siblings under Louisiana law between legitimate siblings or illegitimate siblings, due to the legitimacy of the relationship between the siblings’ parents.

So, in other words, “sibling” means the biological (or adopted) sibling of the deceased.

Presumptions and Proof of Dependency in A Louisiana Workers Compensation Death Claim

The Presumption of Dependency for A Spouse Living with Deceased

A spouse who is living with the deceased worker at the time of the accident or death is presumed to be “wholly and actually dependent” upon the deceased.

If the spouse was not living with the deceased, the spouse may still be entitled to compensation if the spouse can show that he or she was wholly or partially dependent upon the deceased worker.

If the spouse can prove only a partial dependency, the spouse’s compensation will be treated as such.

Thus, the presumption of dependency given the spouse living with the deceased is advantageous because:

1. It not only relieves the spouse of the necessity of producing proof of dependency; but 
2. It also assures the spouse of recovery of the maximum 32 1/2% allowable to a wholly dependent surviving spouse.

The Presumption of Dependency for A Child “Living With” Deceased

Any child under the age of eighteen (or over eighteen, if the individual is physically or mentally incapacitated from earning) is, like a surviving spouse, presumed to be wholly and actually dependent upon the deceased worker if the child was living with the worker at the time of the accident or death.

Also, a child under the age of 23 – if enrolled and attending as a full-time student in an accredited educational institution – is presumed to be wholly and actually dependent upon the deceased worker if the child was living with the worker or at school at the time of the accident or death.

Proof of Dependency

So, a spouse and child (up to a certain age) living with the deceased are presumed to be dependents of the deceased worker.

But other claimants — such as parents, siblings, other dependent members of the family — must prove dependency, or they will be denied workers compensation death benefits. 

Also, the surviving spouse and children who were not living with the deceased at the time of accident or death are still entitled to compensation if they show total or partial dependency. This is fairly easy for the children, but somewhat difficult for the surviving spouse.

Last, dependency must have existed at the time of the accident and death.

Proof of prior dependency is not sufficient, and contributions made by the deceased to a partial dependent more than a year before the death cannot be included in determining the amount of compensation to which a partial dependent is entitled.

Burial and Funeral Expenses in Fatal Louisiana Workers Compensation Accidents

Louisiana workers compensation entitles surviving family members of a deceased worker to receive a lump sum benefit for funeral and burial expenses.

The maximum benefit for funeral and burial expenses is currently $8,500. 

But if the reasonable expenses for the burial of an employee are less than $7,500, the difference between such reasonable expenses and $7,500 shall be paid to the heirs of the deceased workers, and such payment shall be in addition to any other benefits paid on behalf of the deceased employee.

The Louisiana Statutes for Death Benefits in Louisiana Workers Compensation

The primary Louisiana statutes for death benefits are La. R.S. 23:1231, La. R.S. 23:1232, and La. R.S. 23:1233. These statutes read as follows:

§1231.  Death of employee; payment to dependents; surviving parents
A.  For injury causing death within two years after the last treatment resulting from the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as provided in this Subpart.
B.(1)  If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.
(2)  If the employee leaves no legal dependents, whether biological or adopted, entitled to benefits under any state or federal compensation system, one lump sum payment of seventy-five thousand dollars shall be paid to the employee’s surviving biological and adopted children who are over the age of majority, to be divided equally among them, which shall constitute the sole and exclusive compensation in such cases.
(3)  If the employee leaves no dependents entitled to benefits under Paragraph (2) of this Subsection, one lump sum of seventy-five thousand dollars shall be paid to the surviving biological and adopted children of the employee to be divided equally among them, which shall constitute the sole and exclusive compensation in such cases.  If the employee leaves no legal dependents and no biological or adopted children entitled to benefits under any state or federal compensation system, the sum of seventy-five thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases.
Amended by Acts 1956, No. 412, §1; Acts 1968, Ex.Sess., No. 25, §6; Acts 1975, No. 583, §10, eff. Sept.  1, 1975; Acts 1980, No. 509, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989; Acts 1992, No. 431, §1; Acts 2001, No. 1156, §1; Acts 2012, No. 99, §1; Acts 2012, No. 793, §1.
§1232.  Allocation to dependents; schedule of payments
Payment to dependents shall be computed and divided equally among them on the following basis:
(1)  If the widow or widower alone, thirty-two and one-half per centum of wages.
(2)  If the widow or widower and one child, forty-six and one-quarter per centum of wages.
(3)  If the widow or widower and two or more children, sixty-five per centum of wages.
(4)  If one child alone, thirty-two and one-half per centum of wages of deceased.
(5)  If two children, forty-six and one-quarter per centum of wages.
(6)  If three or more children, sixty-five per centum of wages.
(7)  If there are neither widow, widower, nor child, then to the father or mother, thirty-two and one-half per centum of wages of the deceased.  If there are both father and mother, sixty-five per centum of wages.
(8)  If there are neither widow, widower, nor child, nor dependent parent entitled to compensation, then to one brother or sister, thirty-two and one-half per centum of wages with eleven per centum additional for each brother or sister in excess of one.  If other dependents than those enumerated, thirty-two and one-half per centum of wages for one, and eleven per centum additional for each such dependent in excess of one, subject to a maximum of sixty-five per centum of wages for all, regardless of the number of dependents.
Acts 2008, No. 703, §1.
§1233.  Death or marriage of dependent; age limit of minor dependent
Weekly payments to a surviving spouse shall continue until the death or remarriage of such surviving spouse.  In the case of remarriage of a surviving spouse, two years compensation payments shall be payable in one lump sum.
Weekly payments to a surviving child, physically or mentally incapacitated from earning, shall continue as long as such incapacity exists.
Weekly payments to a minor dependent child, who is not mentally or physically incapable of wage earning, shall terminate when he dies, marries, reaches the age of eighteen years, or, if enrolled and attending as a full-time student in any accredited educational institution, until he ceases to be so enrolled and attending or reaches the age of twenty-three years.
Weekly payments for all other dependents as determined in Subpart D of the Chapter shall continue as long as their dependency shall exist or shall terminate upon their deaths.
Amended by Acts 1975, No. 583, §11, eff. Sept.  1, 1975.