4.4 Death Benefits.

• Library: Workers' Compensation Practice in Virginia (Virginia CLE) (2020 Ed.)

4.4 DEATH BENEFITS.

4.401 In General. Benefits for dependents of an employee whose death is the result of a compensable accident are provided for in section 65.2-512 of the Virginia Code. ¹⁵⁹ Benefits under section 65.2-512 are available to total or to partial dependents, if there are no total dependents. Compensable fatalities may occur while an employee is in the employee's personal automobile ¹⁶⁰ or at an employer-sponsored party. ¹⁶¹

Benefits under this section are only available when the employee's death occurs within nine years of the accident ¹⁶² In addition, an initial claim must be filed within two years of the date of the accident, and a claim for death benefits must be filed within two years of the employee's death. ¹⁶³ For occupational disease claims, the dependent must file within three years of the death. ¹⁶⁴

A claimant for death benefits is required to prove a causal connection between the accident and subsequent death by a preponderance of the evidence. If the evidence shows that it is just as probable that death ensued

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from a cause that is not compensable, the claimant has not met the burden of proof. ¹⁶⁵

4.402 Amount of Compensation.

A. Two Types of Dependents.

1. Total Dependents. Persons deemed to be wholly dependent on the deceased employee's earnings are entitled to a weekly payment of 662/3 percent of the employee's average weekly wage. Dependence has been defined to mean that the claimant looked to and relied on the contributions of the employee, in whole or in part, as a means of support and maintenance in accordance with social position and accustomed mode of life. ¹⁶⁶

2 Partial Dependents. Persons partially dependent upon the deceased employee's earnings are entitled to benefits that are diminished in proportion to the extent of their dependency. A person is partially dependent when some part of the amount necessary for support was received from a source other than the earning of the deceased employee. The Commission

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determines the percentage of total support cost contributed by the deceased employee, and it awards that portion of the amount that would have been paid had the claimant been a total dependent. ¹⁶⁷

B. Illegal Aliens, AmeriCorps Members, Certain Food Stamp Recipients. Dependents of undocumented workers are eligible for death benefits. ¹⁶⁸ However, AmeriCorps members, Food Stamp recipients participating in the work experience component of the Food Stamp Employment and Training program, and Temporary Assistance of Needy Families recipients participating in the work experience component of the Virginia Initiative for Education and Work program are not eligible for death benefits. ¹⁶⁹

C. Priority Among Dependents. section 65.2-512 governs situations in which there is more than one surviving dependent of the deceased employee. If there is more than one person wholly dependent, the death benefits are divided equally among them. Persons totally dependent in fact under section 65.2-516 share equally with persons conclusively presumed dependent under section 65.2-515. ¹⁷⁰ For example, where the deceased employee left a deserted wife, three deserted children, an acknowledged illegitimate child, and an illegitimate child dependent in fact, the six persons shared equally in the award. ¹⁷¹

If there is a total dependent, no award can be made in favor of a partial dependent. ¹⁷² If a sole total dependent ceases to be entitled to compensation benefits during the 500-week period, however, partial dependents may then claim compensation benefits. If there is no person totally dependent, and more than one person is partially dependent on the deceased employee, the benefits are divided among them according to the relative extent of their dependency. ¹⁷³

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D. Maximum and Minimum Payment. The maximum weekly recovery for both partial and total dependency is 100 percent of the average weekly wage of the Commonwealth. The minimum is 25 percent of that figure. ¹⁷⁴ The amount of recovery is based on the statute as it existed on the date of the accident, not at the date of death. ¹⁷⁵

E. Maximum Time Period. Weekly payments under section 65.2-512(A) are allowed for a maximum of 400 weeks from the date of injury, except that dependents listed in section 65.2-515 are entitled to 500 weeks in accordance with section 65.2-512(A)(1).

F. Cost-of-Living Supplements. Eligible dependents are entitled to cost-of-living supplements. ¹⁷⁶

G. Termination of Dependency. Dependence of a widow or widower of the deceased employee terminates upon death or remarriage. The widow's or widower's share is then distributed among the children or other dependents "in the proportion of which they are receiving." ¹⁷⁷ The dependency of a child terminates when he or she reaches the age of 18 unless the child is physically or mentally incapacitated from earning a livelihood or is a full-time student under the age of 23. ¹⁷⁸

Once eligibility is terminated, benefits are reallocated proportionately among any remaining members of the same class of beneficiaries. ¹⁷⁹

H. Duty to Report Remarriage or Change in Student Status. Section 65.2-712 requires a statutory dependent under section 65.2-515 to immediately disclose to the employer if the employer is self-insured, or to the insurer in all other cases, any remarriage or change in status as a fulltime student. If the statutory dependent fails to report changes, the employer

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or insurer may be given a credit toward future compensation payments or pursue an action at law against the statutory dependent to recover the funds. The Commission advises statutory dependents of their obligation to provide notification.

4.403 Dependency.

A. Presumptions of Total Dependency.

1. Nature and Effect. Under section 65.2-515 of the Virginia Code, four groups of persons are presumed as a matter of law to be wholly dependent on the deceased employee. These persons include:

a.	A spouse upon his or her deceased spouse whom he or she had not voluntarily deserted at the time of the accident or with whom he or she lived at the time of the accident, if he or she is then actually dependent upon the deceased spouse;
b.	A child under the age of 18 and a child over such age if physically or mentally incapacitated from earning a livelihood or a child under the age of 23 if enrolled as a full-time student in any accredited educational institution; and
c.	Parents in destitute circumstances, provided that there are no total dependents under other provisions of this section.

2. Burden of Proof. A claimant has the burden of proving that he or she comes within one of the dependent classes and is at least partially dependent on the deceased. In determining whether the claimant is in a dependent class, the circumstances as of the date of the employee's death are controlling. For example, where an employee was killed three days after a divorce decree was entered, the divorced wife could not claim the conclusive presumption of dependency despite subsequently obtaining a court order vacating the decree. ¹⁸⁰ Unless entitled to a presumption of dependency under

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section 65.2-515, the claimant must prove dependency in accordance with section 65.2-516. ¹⁸¹

3. Spousal Compensation. A spouse who has not voluntarily deserted or abandoned the deceased employee or was living with the employee at the time of the accident is entitled to compensation. However, the spouse must be at least partially dependent upon the deceased employee to be conclusively presumed to be dependent. In establishing dependency, the surviving spouse must show that he or she looked to or relied on the deceased employee's contribution for support or maintenance in accord with his or her social position and accustomed mode of life. ¹⁸²

A spouse claiming compensation must have been legally married to the deceased employee. ¹⁸³ The presumption does not include common law marriages contracted within the boundaries of...