Determination of Long-Term Care Benefits in Georgia Workers’ Compensation Claims – Employment and Human Resources

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Dependency Pension Determination in Georgia Workers’ Compensation Claims

March 10, 2022

Drew Eckl & Farnham, LLP

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If an employee suffers an injury as a result of an accident arising out of and during employment that results in immediate death or thereafter during the period of incapacity for work, those who are the employee’s “dependents” may be entitled to benefits. OCGA § 34-9-265. A dependent is defined as “someone who seeks support from another or is dependent on another for the ordinary needs of life to which they have become accustomed”. Glen Falls Indemnity Company v. Jordan, 56 Ga. App. 449 (1937). A dependent must have been dependent on the employee for at least three months prior to the employee’s death to be entitled to recover some or all of the benefits owed to the employee.

If the deceased employee is surviving dependents, OCGA § 34-9-265(b)(2) requires the employer to continue to pay income benefits to the employee’s survivors that are wholly dependent on the employee’s income at the time of the injury to the extent specified in OCGA § 34-9-261 Total Incapacity Compensation. If the worker leaves dependents only partially dependent on his wages for their maintenance, the weekly allowance for such dependents shall be in the same proportion to the allowance for full dependents as the average weekly contribution of the deceased to the partially dependent. If there are no dependents, the insurer or self-insurer pays the State Board of Workers Compensation the lesser of one-half the benefits that would have been payable to those dependents or $10,000.00.

Who qualifies for dependent status under the Georgia Workers Compensation Act is a common question when the deceased employee has more than one survivor. Maintenance issues are to be determined in whole or in part according to the facts at the time of the accident, . and in such other cases, when more than one person is wholly dependent, the death benefit will be divided among them and any partially dependent person will not receive any part of it. OCGA § 34-9-13(d). The applicant has the burden of proving his dependency and the degree of that dependency. Wallace v. American Mutual Liability Insurance Company, 73 Ga. App. 869 (1946). A dependent applicant does not necessarily have to be a family member or relative of the deceased to be eligible for care allowance. St. Paul Mercury Indemnity Company v. Robinson, 88 Ga. App. 217 (1953).

The law classifies dependents as primary beneficiaries who were wholly dependent on the deceased worker and secondary beneficiaries who were partially dependent on the deceased to determine the precedence of competing maintenance claims. Pursuant to OCGA § 34-9-13(b), a spouse of the deceased employee is definitively presumed to be a close relative who is wholly dependent on the deceased employee if the surviving spouse has not been separated from the deceased for ninety days lived before the date of the accident. A child of the deceased is also presumed to be a close relative who is wholly dependent on the deceased worker’s support if the child is under the age of eighteen or enrolled full-time in high school, over the age of eighteen and physically or mentally is unable to earn a living, or is under the age of twenty-two and a full-time student or equivalent full-time student enrolled in a post-secondary college. A “child” of the deceased includes dependent stepchildren, lawfully adopted children, successor children and recognized children born out of wedlock, but excludes married children. The use of the word “dependent” before each of these categories implies that proof of maintenance is required before next of kin status can be definitively assumed for each specified class of children in order to receive benefits for the deceased’s death.

Primary beneficiaries who are conclusively presumed to be full dependents are entitled to the compensation that the deceased worker would have received for compensation resulting from the industrial accident. OCGA § 34-9-265(b)(2). If there is more than one primary beneficiary, the amount of long-term care benefits payable by the employer/insurer will not increase or decrease the total amount of weekly long-term care benefits payable. Georgia Forestry Commission v. Harrell, 98 Ga. App. (1958). The Board has the authority, in its sole discretion, to apportion the death benefits equally among the eligible principal dependants. OCGA § 34-9-13(c).

If the deceased has at least one main dependant, a partial dependant cannot receive alimony. 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 alimony, secondary beneficiaries who are wholly dependent on the deceased are entitled to alimony. St. Paul Fire & Marine Insurance Company, 119 Ga. App. 619 (1969). However, in order to receive death benefits, a person who is not presumed to have dependents must have actual full or partial dependents for a period of three months prior to the deceased’s accident.

The dependent spouse’s entitlement to death benefit ends upon remarriage or cohabitation, or upon reaching the age of 65, or upon expiry of the 400-week benefit limit, or upon death. OCGA § 34-9-13(d). A dependent child’s entitlement to child support ends at age 18, except for a child who is physically or mentally unable to support himself or herself or who is enrolled full-time in a high school, or is under 22 and a full-time capable student with good standing who is enrolled in a post-secondary college. OCGA § 34-9-13(d).

The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.

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