Death Benefits

• Jurisdiction: Maryland

IX. DEATH BENEFITS

A. In General

1. Death is separate compensable event

If a worker dies as a result of an accidental injury or occupational disease, the death is a separate compensable event and his or her dependents are entitled to recover, as of the date of death, the death benefits.²⁸³

Accordingly, the worker in unilaterally settling his or her claim for compensation may not foreclose the right of his or her dependents to maintain a future claim for death benefits in the event he or she dies as a result of the accidental injury or occupational disease.²⁸⁴

However, if the issue of compensability of the worker's injury was determined during his or her lifetime, that determination is binding on a future claim by his or her dependents for death benefits.²⁸⁵

If the employee was disabled and later died as a result of the compensable injury, claimant's counsel should file separate claims for the disability and the death.

2. Time limitation

The death is not compensable unless it occurs within seven years of the date of the accident.²⁸⁶ In 1980, the same limitations period which had been contained in former Art. 101, § 23(c) and (d) relating to occupational disease was repealed.²⁸⁷

B. Dependency

A dependent is defined as one who relies in whole or in part upon a worker for the reasonable necessities of life or to maintain his or her accustomed mode of living.²⁸⁸ Whether the person was capable of supporting himself or herself without the earnings of the worker is immaterial.²⁸⁹

To support a finding of dependency there must be a showing that the worker provided actual support to the person. A mere legal or moral obligation to support is not sufficient.²⁹⁰ A surviving spouse who deserted the employee for more than one year before or any time after the accidental injury or the date of disablement from an occupational disease is not entitled to benefits.²⁹¹

Dependents awarded death benefits have included a worker's:

a. Parents and step-parents;²⁹²
b. Posthumous or illegitimate children;²⁹³
c. Female friend who was not his wife.²⁹⁴

1. Time for determining dependency

The statute provides that questions of dependency shall be determined in accordance with the facts existing at the time of the accidental injury or the date of disablement from an occupational disease.²⁹⁵

However, the courts in some cases have found dependency where, at the time of injury, there had been a temporary interruption of regular support and there was a reasonable probability that support would have been resumed in the future.²⁹⁶ Similarly, if a dependent was working and supporting himself or herself temporarily at the time of the decedent's injury and was intending to stop working in the near future, he or she may be regarded as a total dependent.²⁹⁷

A surviving spouse is not entitled to death benefits if the spouse and the decedent were married after the date of the accidental injury or the date of disablement from an occupational disease.²⁹⁸

Counsel for both sides should obtain all available records on the issue of dependency, such as earnings records of all household members, records of public assistance, records of household expenses, income tax records, and bank records. All of these may have a bearing.

C. Benefits Payable

Death benefits are paid without credit for any compensation paid to the deceased employee prior to death.²⁹⁹

1. For death claims arising on or after October 1, 2011, benefits are paid as follows:

a. Duration of benefits
(1) Death benefits are payable for a period of 144 months from the date of death, but not less than five years.³⁰⁰
(2) If the minimum of five years of benefits have been paid, the benefits shall cease on the date that would have been the decedent's 70th birthday.³⁰¹
(3) If a dependent spouse or child is incapable of self-support because of a mental or physical infirmity that pre-existed the decedent's death, benefits shall continue for the duration of the dependent's disability.³⁰²
(4) A dependent child is not entitled to benefits after reaching 18 years of age unless he or she is a full time student in an accredited school, in which case benefits cease at age 23.³⁰³
b. Amount of benefits
(1) Benefits are payable to all dependents collectively at the rate of two-thirds of the decedent's average weekly wage, not to exceed 100% of the state average weekly wage, multiplied by the percentage of the family income earned by the decedent.³⁰⁴ The amount of the family income is determined by combining the average weekly wage of the decedent and the average weekly wage of all of his or her dependents.³⁰⁵

(a) If the average weekly wage of the decedent is less than $100.00, the weekly benefit shall be the amount of that average weekly wage.³⁰⁶

(2) All dependents who are neither a dependent spouse nor a dependent child shall be entitled to no more than $65,000.00 collectively as their portion of the death benefits.³⁰⁷ This benefit limit shall be adjusted annually by the same percentage applicable to the adjustment of the state average weekly wage.³⁰⁸
c. Commission's continuing jurisdiction

The Commission shall retain jurisdiction in the future to suspend, reallocate, or terminate benefits and to reinstate benefits that have been suspended or terminated.³⁰⁹

2. Municipal corporations and counties have the option to make a one-time election to make applicable to their employees the death benefits set forth above that were effective on October 1, 2011.³¹⁰ If they do not make this election, then their employees are subject to the statute that was previously in effect, under which the death benefits were determined as follows:

a. Total v. partial dependency

A total dependent is one who subsists entirely on the earnings of the deceased worker. Although he or she may have received temporary gratuitous services, occasional financial assistance or other minor benefits from sources other than the deceased worker, the total...