Who Can Collect Workers Compensation After a Work-Related Death in Virginia?

 

Learn How to Qualify for Workers Comp Death Benefits If You are the Surviving Spouse, Dependent Child, or Parent of a Family Member Who Dies Because of a Workplace Accident or Occupational Disease.

 

Work-related fatalities are still common in Virginia and across the United States. But the statistics don’t tell the whole story.

 

Each worker death on the job is a tragedy that affects multiple people. Family members are left behind to deal with the emotional, mental, and financial devastation that a workplace fatality brings.

 

Grieving spouses, children, and loved ones, as well as those dependent on the deceased worker, deserve compassion, support, and compensation. But for survivors of employees who die because of an on-the-job injury or occupational illness, getting financial help through Virginia workers compensation is difficult.

 

The purpose of this article is to help you win a workers comp death claim in Virginia.

 

Below I discuss common issues that arise in workers comp death claims and what you can do as a survivor to get all the workers compensation benefits you are owed.

 

Keep reading to learn more. And if you decide to hire a top-rated workers compensation attorney to protect your rights, call me for a free consultation: 804-251-1620 or 757-810-5614.

 

I’ve helped surviving spouses and dependent children negotiate top-dollar Virginia workers comp settlements. And have been named a Rising Star by Super Lawyers Magazine, recognized by Best Lawyers as top attorney for injured workers, and listed as one of the Top 100 High Stakes Litigators in the state. Let me help you.

 

The First Step in Receiving Workers Compensation Death Benefits: Prove that the Claim is Compensable

 

As with other types of claims, you must prove that the deceased worker was eligible for workers comp and suffered a compensable injury arising out of and the in the course of the employment to get death benefits.

 

The employer and its insurance carrier may raise the same workers compensation defenses in a death claim that they can raise in a claim where the employee is still living. These defenses include:

 

  • That the deceased worker’s injury did not arise out of and in the course of the employment;

 

  • That the deceased worker was an independent contractor and not an employee at the time of the accident; and,

 

  • That the fatal accident was caused by the deceased worker’s willful misconduct, violation of a safety rule, or intoxication.

 

 

There are other defenses available as well. These are discussed later in the article.

 

Proving compensability can be difficult when the worker has died, especially if the workplace accident was not witnessed by others. But there are two things that often help prove the compensability of claims based on fatal work accidents: (1) the Workers Compensation Commission may allow hearsay testimony about what the deceased worker said about the cause of accident and (2) the Workers Compensation Act includes a rebuttable death presumption.

 

Hearsay Testimony in Workers Comp Death Cases

 

Hearsay evidence is defined as “an out-of-court statement offered to prove the truth of the matter asserted therein.”

 

In some courts hearsay evidence is considered inadmissible unless a specific exception applies. This is known as the Hearsay Rule.

 

The rationale for the Hearsay Rule is that second hand statements made outside of court are too unreliable to be given weight.

 

The Hearsay Rule can make it difficult to prove that a fatal work accident is compensable. But the Commission has shown a willingness to allow hearsay testimony in death claims.

 

In Moore v. Prince William County Schools, JCN VA00000569086 (2013) the full Commission found that the hearsay testimony of multiple people who had seen or treated the deceased worker after the accident and before he died proved a compensable accident. The deceased worker had told these people that he tripped in a hole on the median and fell. Ultimately this fall caused his death.

 

The Moore decision gives you a valuable evidentiary tool if the employer and its insurance carrier dispute that you are entitled to workers comp death benefits. But not all of you will be able to use it. Its value is limited to cases where a deceased worker survives long enough after a work accident to tell others what happened.

 

Workers Compensation Death Presumption for Injury by Accident Claims

 

There are many situations where an employee is unable to testify about a work accident, either because of mental incapacity due to traumatic brain injury, concussion, or post-concussion syndrome, or even death.

 

Recognizing the problem this caused injured employees seeking temporary total disability benefits, lifetime medical treatment, and permanent partial disability benefits, and surviving spouses and dependent children seeking death benefits, the General Assembly added several presumptions to the Workers Compensation Act.

 

The most relevant presumption is found at Virginia Code Section 65.2-105 and is entitled “Presumption that certain injuries arose out of and in the course of employment.” It states:

 

In any claim for compensation, where the employee (i) is physically or mentally unable to testify as confirmed by competent medical evidence, (ii) dies with there being no evidence that he ever regained consciousness after the accident, (iii) dies at the accident location or nearby, or (iv) is found dead where he is reasonably expected to be as an employee, and where the factual circumstances are of sufficient strength from which the only rational inference to be drawn is that the accident arose out of and in the course of employment, it shall be presumed the accident arose out of and in the course of employment, unless such presumption is overcome by a preponderance of competent evidence to the contrary.

 

The Court of Appeals of Virginia, however, has limited the applicability of the workers comp death presumption in K&G Abatement Co. v. Keil, 38 Va. App. 744 (2002) and Clifton v. Cable Contracting, 54 Va. App. 532 (2009).

 

Under Keil and Clifton, a worker must be found dead at the place of work, with no plausible noncompensable cause of the accident, for survivors and dependents to get the workers comp death presumption.

 

Workers Comp Death Presumption for Occupational Disease Claims and Specific Employees

 

If your family member died from an occupational disease and was employed in one of the occupations or by one of the employers listed below, there are special workers comp death presumptions that may apply:

 

  • Firefighter
  • Department of Emergency Management hazardous materials officer
  • Member of the State Police Officers’ Retirement System
  • Member of county, city, or town police department
  • Sheriff
  • Deputy Sheriff
  • City Sergeant for the City of Richmond
  • Virginia Marine Police office
  • Conservation police officer who was a member of the enforcement division of the Department of Game and Inland Fisheries
  • Capitol Police officer
  • Special agent of the Virginia Alcoholic Beverage Control Authority
  • Member of the Metropolitan Washington Airports Authority police force
  • Member of the Norfolk Airport Authority police force
  • Member of the Virginia Port Authority police force
  • Campus police officer for a public institution of higher education

 

There is a presumption that respiratory diseases causing the death of firefighters and Department of Emergency Management hazardous materials officers are work-related. The employer may try to rebut this presumption.

 

There is also a presumption that hypertension or heart disease causing the death of any of the employees listed above, with the exception of hazardous materials officers, is work-related. Read my article on the Heart and Lung Bill for more information.

 

Finally, there is a presumption that leukemia or pancreatic, prostate, rectal, throat, ovarian, or breast cancer causing the death of any of the employees listed above is work-related, so long as the employee completed 12 years of continuous service and was in contact with a toxic substance.

 

Workers Comp Death Benefits When a Family Member Dies Because of Complications or a Consequence of the Initial Work-Related Injuries

 

Sometimes an employee survives the workplace accident, but develops complications or other health problems because of the injuries.

 

If these complications result in death, then you may be entitled to workers comp death benefits as a survivor of the employee.

 

In McDonald v. Service Mechanical, JCN VA00000406564 (2013) the claimant was in excellent health before suffering bone fractures and spinal cord injuries. After the injury he was limited to a sedentary lifestyle, which resulted in cardiovascular problems and death. In awarding the claim for death benefits, the Commission found that work accident caused the cardiovascular problems and chest pain, and that that these consequences of the initial injuries caused the worker’s death.

 

McDonald allows surviving spouses, children, and parents to recover workers comp death benefits when the injuries are life-changing and cause chronic conditions associated with a sedentary lifestyle.

 

Who Can Get Workers Compensation Death Benefits? Only Dependents of the Employee Killed.

 

Once a worker’s death is found compensable, the next step is to determine who can receive benefits.

 

Virginia Code Section 65.2-512 answers that question. It is the workers compensation death benefits statute.

 

This statute provides for benefits for the dependents of an employee who dies because of a compensable work accident. You must prove financial dependency at the time of death to receive benefits.

 

There are several groups of people who are presumed to be wholly dependent for support on the deceased employee.

 

Let’s examine each group of eligible dependents.

 

Death Benefits for Surviving Spouses (Either Husband or Wife)

 

If you are the surviving husband or wife of a deceased employee, then you are presumed eligible for workers comp death benefits if you:

 

  • Were actually dependent on your spouse at the time of the compensable accident; and,

 

  • Actually lived with your spouse at the time of the accident.

 

Make sure you get a copy of your marriage certificate and submit it with your claim for benefits.

 

What if You Did Not Live with Your Spouse or Had Separated at the Time of the Work Accident?

 

It is possible to receive workers compensation death benefits if you did not live with your deceased spouse at the time of the work accident, so long as you did not voluntarily abandon or desert your spouse.

 

And not all marital separations are considered abandonment or desertion of a spouse.

 

In O’Connor, et al. v. Standard Marine, Inc., JCN VA 2377930 (2014) the Commission awarded death benefits to the deceased employee’s wife though she had separated from the employee and lived in a different state.

 

In reaching its decision, the Commission noted that the husband and wife had not filed for divorce and that the wife relied on the deceased employee to maintain her standard of living. This was proven through evidence of wire transfers to the wife’s bank account.

 

Further, the Commission found that the wife had not abandoned her deceased husband when there was evidence of communication between the decedent and his wife both before and after the accident.

 

If you have separated from your husband and wife and are now seeking death benefits, you can increase the likelihood of winning your claim by:

 

  • Presenting evidence of communication (text, email, letter, phone calls, witnesses) with your deceased spouse after separating but before the work accident.

 

  • Presenting evidence of communication with your deceased spouse after the work accident and before your spouse’s death, if there was time between the two events.

 

  • Presenting evidence of a separation agreement ordering spousal support.

 

  • Presenting evidence of wire transfers or payments made to you by your spouse, though you had separated.

 

  • Presenting evidence of bills paid by your spouse though you had separated, including mortgage and car payments.

 

 

 

 

 

 

 

 

  • A child under the age of 18 or a child over the age of 18 if physically or mentally incapacitated from earning a living, or a child under the age of 23 if enrolled as a full-time student; and

 

  • Parents in destitute circumstances, so long as there are no total dependents under other provisions of the law.

 

Dependence is defined as having relied on the deceased worker, either in whole or in part, for support and maintenance of quality of life.

 

Persons who do not fall within one of these groups may file a claim for death benefits in Virginia. They must, however, show that the deceased employee contributed to their support with regularity and that they relied on the contributions for necessities consistent with their quality of life. These cases are difficult to prove. We recommend hiring an attorney for your death benefits claim.

 

An Experienced Attorney Helping You Receive Workers Compensation Death Benefits in Virginia

 

There is no amount of money that will make

 

financial compensation that will make you whole after the death of a loved one at work. But maximizing the amount of money available to you is important so that you can start the process of healing and moving forward. Under Virginia law, eligible family members and dependents may be entitled to up to 500 weeks of compensation equal to the injured worker’s temporary total disability compensation rate and a lump sum for funeral expenses.

 

 

 

 

As your attorney, we can help you with every aspect of your claim for workers compensation death benefits. We represent the following persons in workers comp death cases across Virginia:

 

  • The surviving spouse (husband or wife)

 

  • Minor children of the deceased worker

 

  • Other dependent children of the deceased worker, including those over the age of 18

 

  • Other persons dependent on the worker for support, including parents, girlfriends, and boyfriends

 

  • Common law spouses (common law wife or common law husband)

 

  • The personal representative of the deceased worker’s estate.

 

We recommend hiring a workers comp attorney with experience in personal injury litigation in state and federal courts. This is because you may have not only a workers compensation death benefits claim but also a third-party lawsuit against the person or company whose negligence caused your loved one’s death. For example, if the worker died in a car accident while working, the deceased worker’s heirs may be able to recover damages through Virginia workers compensation and against the negligent driver who caused the accident.

 

Mr. Pollard can represent you on both the workers comp claim and the wrongful death claim to help you maximize the monetary recovery. It’s important to handle the workers compensation claim correctly so that you do not prejudice your legal rights.

 

Keep reading for more information on Virginia laws regarding workers compensation death benefits.

 

 

 

 

How Much Can I Receive in Death Benefits through Workers Compensation?

 

The amount of death benefits available under the Virginia Workers Compensation Act depends on the relationship between the deceased worker and the individual bringing the claim. Both total and partial dependents are entitled to death benefits under Virginia Code Section 65.2-512.

 

1. Persons found wholly dependent on the deceased worker’s earnings are entitled to a weekly payment equal to two-thirds of the employee’s average weekly wage. This amount is equal to the rate for temporary total disability benefits.

 

2. If a person is found partially dependent, they are entitled to death benefits in proportion to how dependent they were on the deceased worker. The Commission will determine the amount of benefits to which the person is entitled.

 

Dependents who fall within one of the four presumptive classes are entitled to 500 weeks of death benefits. Other persons entitled to death benefits can receive a maximum of 400 weeks

 

Limitations Periods for Obtaining and Filing Claims for Death Benefits in Virginia

 

A deceased worker’s dependents may be entitled to death benefits if the worker dies within nine years of the work-related accident or diagnosis of an occupational disease. The workplace fatality need not happen on the date of the accident for dependents to receive death benefits.

 

The claim for death benefits must be filed within two years of the worker’s death. If it is not, then the employer and its insurance company may avoid paying death benefits by arguing that the workers compensation statute of limitations has passed.

 

 

 

Funeral and Burial Expenses under Virginia Workers Compensation

 

The Virginia Workers’ Compensation Act authorizes up to an additional $10,000 in compensation for burial expenses

 

 

Get Help with Your Claim for Death Benefits under Workers’ Compensation

 

Dealing with the death of a loved one is never easy. But we can help. Call, text, or email Corey Pollard today for help with your case. We help family members of deceased workers throughout Virginia

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