Where an employee sustains an injury arising from an accident arising out of and in the course of employment which results in instant death or thereafter results in death during the period of disability, the individuals who are the employee's "dependents" may be entitled to benefits. O.C.G.A. § 34-9-265. A dependent is defined as "one who looks to another for support or one who is dependent on another for the ordinary necessities of life to which he has become accustomed". Glen Falls Indemnity Company v. Jordan, 56 Ga. App. 449 (1937). A dependent must have been dependent upon the employee for at least three months prior to the employee's death to qualify to recover some or all of the benefits owed to the employee.
If the deceased employee leaves dependents O.C.G.A. §
34-9-265(b)(2) requires the employer to continue paying income
benefits to the surviving dependents of the employee who are wholly
dependent on his earnings for support at the time of the injury
equal to the compensation provided in O.C.G.A. § 34-9-261 for
total incapacity. If the employee leaves dependents only partially
dependent on his earnings for their support, the weekly
compensation for these dependents shall be in the same proportion
to the compensation for persons wholly dependent as the average
amount contributed weekly by the deceased to the partial dependent.
If there are no dependents, the insurer or self-insurer shall pay
the State Board of Workers Compensation the lesser of half the
benefits that would have been payable to such dependents or
$10,000.00.
Who qualifies for dependent status under the Georgia Workers
Compensation Act is a question often presented when the deceased
employee leaves more than one surviving dependent. Questions of
dependency, in whole or in part, shall be determined in accordance
with the facts at the time of the accident, . and in such other
cases, if there is more than one than one person wholly dependent,
the death benefit shall be divided among them, and persons
partially dependent, if any, shall receive no part thereof.
O.C.G.A. § 34-9-13(d). The claimant has the burden of proving
his or her dependency and the degree of such dependency. Wallace v.
American Mutual Liability Insurance Company, 73 Ga. App. 869
(1946). A claimant dependent does not necessarily need to be a
member of the decedent's family or a relative in order to be
eligible for dependency benefits. St. Paul Mercury Indemnity
Company v. Robinson, 88 Ga. App. 217 (1953).
The Act classifies dependents as primary beneficiaries who were
wholly dependent on the deceased employee and secondary
beneficiaries who were partially dependent on the decedent to
determine the priority of competing dependency claims. Pursuant to
O.C.G.A. § 34-9-13(b) a wife or husband of the deceased
employee is conclusively presumed to be next of kin wholly
dependent upon the deceased employee for support if the surviving
spouse was not living separately from the decedent for ninety days
prior to the accident date. A child of the deceased is also
presumed to be next of kin wholly dependent upon the deceased
employee for support if the child is under the age of eighteen, or
enrolled full time in high school, over eighteen and physically or
mentally incapable of earning a livelihood, or under the age of
twenty-two and a full time student or the equivalent in good
standing enrolled at a post-secondary institution of higher
learning. A "child" of the decedent includes dependent
step children, legally adopted children, posthumous children and
acknowledged children born out of wedlock but does not include
married children. The use of the word "dependent" before
each of these categories implies that proof of dependency is
necessary before next of kin status can be conclusively presumed
for each class of child noted in order to recover benefits for the
death of the decedent.
Primary beneficiaries who are conclusively presumed to be totally
dependent are entitled to the amount of compensation the deceased
employee would have received for a compensable on the job accident.
O.C.G.A. § 34-9-265(b)(2). Where there is more than one
primary beneficiary, the amount of dependency benefits to be paid
by the employer/insurer does not increase or decrease the total
amount of weekly dependency benefits to be paid. Georgia Forestry
Commission v. Harrell, 98 Ga. App. (1958). The Board has in its
discretion the authority to apportion the death benefits equally
among the eligible primary dependents. O.C.G.A. §
34-9-13(c).
If the decedent has at least one primary dependent, a partial
dependent cannot recover dependency benefits. Stevedoring Services
of America v. Collins, 247 Ga. App. 149 (2000). If there are no
primary beneficiaries or a primary beneficiary waives their right
to recover dependency benefits, secondary beneficiaries who are
totally dependent on the decedent are eligible to recover
dependency benefits. St. Paul Fire & Marine Insurance Company,
119 Ga. App. 619 (1969). Nevertheless, a person who is not presumed
to be dependent must prove actual total or partial dependency for a
period of three months prior to the decedent's accident to
recover death benefits.
A dependent spouse's entitlement to death benefits ceases with
remarriage or cohabitation in a meretricious relationship or
reaching the age of 65 or the expiration of the the 400 week
benefit cap or death. O.C.G.A. § 34-9-13(d). A dependent
child's entitlement to dependency benefits terminates at 18
years of age, except a child physically or mentally incapable of
earning a livelihood or enrolled full time in high school or under
22 and is a full time student in good standing enrolled at a
post-secondary institution of higher learning. O.C.G.A. §
34-9-13(d).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.