Trial Notebook: Death Benefits (Workers Compensation)

O.C.G.A. § 34-9-13(e) provides that the dependency of a spouse of a deceased employee shall terminate at age 65 or after payment of 400 weeks of benefits, whichever provides greater benefits.

O.C.G.A. § 34-9-265(b) provides that the total compensation payable under the Workers' Compensation Act to a surviving spouse as a sole dependent at the time of death shall in no case exceed $125,000.00. An earlier version of this statute provided a $100,000.00 cap.

O.C.G.A. § 24-9-265(b)(4) provided that the number of temporary total disability weekly payments made to the injured employee shall be subtracted from the maximum 400-week period of dependency of a spouse provided by O.C.G.A. § 34-9-13.

Furthermore, a surviving spouse may choose either to take benefits for a total of 400 weeks or until she reaches age 65. If she chooses the age 65 limit, then in that event the employer/insurer cannot take credit for benefits paid to the employee prior to the employee's death. See One Beacon Insurance Company v. Hughes, 269 Ga. App. 390, 604 S.E.2d 248 (2004). In this situation there is a monetary cap of total benefits paid the surviving spouse of $100,000.00 which is now $125,000.00. The Court of Appeals went on to say that law that was in effect at the time of the employee's injury and not his death is the law that applies. See Zurich Insurance Company v. Spence, 122 Ga. App. 464, 177 S.E.2d 503 (1970); see also Hart v. Owens - Illinois, Inc., 250 Ga. 397,(297 S.E.2d 426 (1982); Pringle v. Mayor and Alderman of the City of Savannah, 223 Ga. App. 751, 478 S.E.2d 139 (1996).

O.C.G.A. § 34-9-13 provides that a wife or husband shall be conclusively presumed to be the next of kin wholly dependent upon a deceased employee except that if the surviving spouse was employed for a period of 90 days net prior to the accident which resulted in the death of the deceased employee the presumption of total dependency shall be rebuttable.

In this case, the Court of Appeals felt that the Administrative Law Judge had not properly decided total dependency because the surviving spouse had been employed for a period of 90 days. See Jones v. Winners Corporation, 189 Ga. App. 875, 377 S.E.2d 705 (1989).

Death Benefits For Wife-Marriage: One who is not married to an employee at the time of his death, is not entitled to dependency benefits, despite actual dependency, on the grounds that such payments should not grow out of a meretricious relationship. See Williams v. Corbett, 1990 WL 97043 (No. S90G0964—Not reported in S.E.2d) (1990).

Child, when father has his rights terminated by juvenile court for non-support, such termination of parental rights does not preclude child from receiving workers comp death benefits from real father's employer pursuant to Act. See Menard vs. Fairchild, 254 Ga. 275, 328 S.E.2d 721 (1985).

Even though a wife survives her husband by only 45 days, she is still entitled to death benefits even though she died before the Award and the subsequent Injury Trust Fund cannot recover. See Freeman Decorating Co. v. Subsequent Injury Trust Fund, 175 Ga. App. 369, 333 S.E.2d 204 (1985).

Child. Even though child is the illegitimate offspring of the surviving spouse, the child is still considered a dependent of the deceased employee. See United States Fire Ins. Co. v. City of Atlanta, et al, 135 Ga. App. 390, 217 S.E.2d 647 (1975).

Presumption of child not terminated by petition to terminate parental rights. See Menard vs. Fairchild, 254 Ga. 275, 328 S.E.2d 721 (1985).

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