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CHAPTER 3-302 - DEATH

1. Purpose and Scope. This Chapter contains the procedures to be followed in handling secondary death cases. The initial development of primary death cases is covered in PM 2-202.

2. Death Benefits.

a. General. Death benefits are payable to eligible survivors if the injury or disease causes death. Compensation includes reasonable funeral expenses up to $3,000. A widow or widower can receive compensation at the rate of 50 percent of the Average Weekly Wage (AWW) of the deceased. Each dependent child is entitled to receive compensation at the rate of 16 2/3 percent of the deceased employee's AWW. Total death benefits may not initially exceed 66 2/3 percent of the deceased employee's AWW and are subject to the statutory limitations contained in section 6(b) of the Act on the date of death. However, the section 6(b) limit may be exceeded by the addition of section 10(f) increases. See PM 3-302.7 for more information on computing death benefits.

A "child" shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in loco parentis for at least one year prior to the time of the injury, and a step child or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him.

The Board has held that the definition of the term "in loco parentis" is to be found in the laws of the pertinent state.

Generally speaking, any person who takes a child of another into his/her home and treats it as a member of his/her family, providing parental supervision, support and education as if is were his/her own child, is said to stand in loco parentis. A person stands in loco parentis to a child when the person intends to assume toward the child the status of a parent. Examples can include, but are not limited to: supplying money for food and clothes; providing discipline; providing parental status/supervision, support and education, and statements to the fact that the child was considered by the decedent as his/her child or acknowledged as his/her child.

b. Other Eligible Survivors include dependent brothers, sisters, grandchildren, parents, and grandparents. The first three types of beneficiaries are entitled to twenty percent and the latter two, twenty-five percent. However, those beneficiaries are subordinate to the widow/widower and children; and can only receive an aggregate amount not more than the maximum percentage allowable. Thus a widow/widower and child would preclude other beneficiaries. A widow/widower without children would decrease a brother/sister's share from the twenty percent to sixteen and two thirds percent (see section 9(d) of the Act).

c. Remarriage. Upon remarriage, a widow or widower will receive a lump sum equivalent to two years compensation. Other survivors' benefit will be recomputed, effective as of the date of remarriage, and the lump sum is not to be treated as if it were periodic, that is, it does not count against the aggregate maximum, which is 66 2/3 of the deceased worker's wages. (See LHWCA MEMO 59, March 6, 1979.) Awards to children, brothers sisters, and grandchildren terminate when they reach eighteen years of age, but such compensation may be extended if a child is a student or is incapable of self-support. (See section 2(14) of the Act and LHWCA MEMO 11, June 22, 1965.) An amended order awarding benefits as a result of the remarriage is to be issued. Copies of the above-referenced LHWCA memos can be obtained from the National Office if needed.

d. Dependent Beneficiaries. Section 2(14) of the Act provides that the terms “‘child,’ ‘grandchild,’ ‘brother,’ and ‘sister’ include only a person who is under eighteen years of age, or who, though eighteen years of age or over, is (1) wholly dependent upon the employee and incapable of self-support by reason of mental or physical disability, or (2) a student as defined in paragraph (18) of this section.”

e. Student Benefit.

(1) Section 2(18) defines the term "student" to include a person who is regularly pursuing a full-time course of study or training at certain specified classes of institutions, but not beyond the end of the semester or enrollment period after the person reaches the age of twenty-three, or has completed four years of education beyond the high school level.

(2) A child shall not be deemed to have ceased to be a student during

(a) any interim between school years if the interim does not exceed five months and he/she shows to the satisfaction of the Secretary that he/she has a bona fide intention of continuing to pursue a full-time course of study during the enrollment period immediately following the interim; or

(b) periods of reasonable duration during which, in the judgment of the Secretary, he/she is prevented by factors beyond his/her control from pursuing his/her education.

(3) A child shall not be deemed to be a student during a period of service in the Armed Forces of the United States.

3. Compensation Orders. At such time as the pertinent information is received and the payment of compensation has not been contested, a formal compensation order should be issued. If the case is contested, the procedures in Part 4, Case Adjudication are to be followed.

a. Benefits for Children. Where benefits are to be awarded for a child as defined in section 2(14), the order may provide for payment of benefits for a child eligible as a student by including the following or similar language:

That compensation may be continued for a child after he/she reaches the age of eighteen, if he/she is a "student" as defined by the Longshore and Harbor Workers' Compensation Act at the time he/she reaches the age of eighteen, for so long as he/she continues to be a student within the requirements of section 2(18), but not beyond the end of the semester or enrollment period after he/she reaches the age of twenty-three, or has completed four years of education beyond the high school level.

b. Benefits for Brother, Sister or Grandchildren. Compensation orders awarding death benefits for brothers, sisters, or grandchildren, may provide for payment of benefits for such dependents eligible as a student, by including the following or similar language:

That compensation may be continued for a brother/sister/grandchild after he/she reaches the age of eighteen, if he/she is a "student" as defined in the Longshore and Harbor Workers' Compensation Act, at the time he/she reaches the age of eighteen, for as long as he/she continues to be a student within the requirements of section 2(18), but not beyond the end of the semester or enrollment period after he/she reaches the age of twenty-three or has completed four years of education beyond the high school level.

4. Absence of Beneficiaries. If no eligible beneficiaries are found after a thorough investigation, a call-up shall be placed on the file to coincide with one year from the date of death. At that time, the DD will issue a compensation order in accordance with section 44(c)(1) of the Act, ordering the EC to pay $5,000 to the Special Fund. The EC is to be notified that a check is to be made out to the U.S. Department of Labor and forwarded to the DD. The DD will then forward the check with a memorandum and a copy of the compensation order to the Director, DLHWC.

5. Death Benefits to Students. The actions and documentation involved in such cases follow:

a. Notice to Beneficiary of Benefit. In any death case where a benefit is being paid on account of a child or other dependent under eighteen years of age, Form Ltr. LS-535, Notice to Guardian of Provision for Benefit Continuation (see Exhibit 44, PM 10-200) is to be sent to the person to whom the death benefit is being paid within three months after the dependent reaches the age of seventeen. This letter advises the recipient of the potential eligibility of the dependent for a continuing death benefit. ("Dependent" as used in this chapter and the form letters refers to a child or other individual named in 2(14) of the Act.)

b. Notice to Parent/Guardian of Benefit. Within sixty days before a "dependent" becomes eighteen years of age, Form Ltr. LS-536, Notice to Guardian of Requirement to Complete Form LS-266 (see Exhibit 45, PM 10-200) shall be sent to the parent or guardian, enclosing two copies of Form LS-266, Application for Continuation of Death Benefit for Student (see Exhibit 34, PM 10-200).

c. DD/CE Evaluation of Case. Upon receiving a completed Form LS-266, bearing the certification of the official of the educational institution in which the dependent is enrolled, the DD/CE will determine whether the dependent is entitled to a continuing benefit as a "student." If the dependent is considered to be eligible, Form Ltr. LS-541, Recommendation to Employer/Carrier to Accept Continuation of Benefit (see Exhibit 47, PM 10-200) shall be sent to the EC paying benefits (or to the Director, DLHWC, if the case is being compensated under the War Hazards Compensation Act or from the Special Fund) enclosing one copy of Form LS-266.

d. Failure to Authorize Benefit. If the employer/carrier declines to continue the benefit or, if discontinued, declines to resume paying it, the DD/CE shall take appropriate action to resolve the question of the dependent's eligibility in accordance with the usual procedure for resolving disputed issues. (See Part 4, Case Adjudication.)

6. Death Benefits for Survivors of Disability Beneficiaries. Section 9 of the Act, as amended by Pub. L. No. 98-426 (enacted September 28, 1984) provides benefits to the survivors of an employee whose injury causes death. The apportionment for these benefits is described in paragraph 2, above. Thus, the survivors are eligible if the claimant dies immediately or if the claimant is eligible for temporary total disability or permanent total disability and subsequently dies as a result of the accepted occupational injury.

7. Computing Death Benefits.

a. In computing death benefits, the average weekly wage of the deceased shall not be lower than the National Average Weekly Wage prescribed in section 6(b) of the Act at the time of death. Thus, if the claimant's average weekly wage at the time of injury is less than the National Average Weekly Wage at the time of death, the latter wage is to be utilized. However, the total initial weekly benefits shall not exceed the lesser of the average weekly wages at the time of injury or the benefit the employee would have been eligible to receive utilizing the section6(b)(1) calculations.

b. If the death is due to an occupational disease, for which the time of injury, as determined by section 10(i) of the Act, occurred after the decedent had retired, the total initial weekly benefits shall not exceed one fifty-second part of the decedent's average annual earnings during the fifty two week period preceding retirement.

8. Funeral Expenses. Section 9(a) of the Act provides for a reasonable funeral expense not to exceed $3,000. The survivors are not entitled to a simple lump sum of $3,000 upon the death of the employee. The payment is to be made to the person or business who supplied the funeral service or related items or to the person or persons that paid for the service. The amount shall be limited to the actual expenses incurred up to $3,000. Form LS-265, Certification of Burial Expenses (see Exhibit 33, PM 10-200) must be submitted prior to the issuance of the compensation order awarding funeral expenses.

9. Change in Status of Beneficiary. Whenever the CE determines that there has been a change in the status of a beneficiary (e.g., death, remarriage, termination of eligibility because of age, etc.) the responsible provider of benefits, EC or Special Fund is to be notified immediately in writing. Otherwise incorrect payments will result. Reference PM Chapters 6-300.9 for verification of student status procedures.

10. Annual Adjustments. The procedures for annual adjustments under sections 10(f) and 10(h) of the Act in death cases are covered in PM Chapters 3-202 and 3-203.

11. Legislative History. Public Law No. 98-426, which was enacted on September 28, 1984, is applicable to any death that occurred on or after September 29, 1984 regardless of the date of the original injury. Public Law No. 92-576, enacted on October 27, 1972, is still applicable to deaths that took place between October 27, 1972, and September 28, 1984. This is significant since death benefits are payable in those cases where the claimant was entitled to permanent total disability benefits and died from unrelated causes. These unrelated death benefits are not subject to annual section 10(f) adjustments. In addition, there is no weekly maximum limitation on death benefits for deaths which occurred during this period in accordance with the Supreme Court's decision in Director, OWCP v. Rasmussen, 567 F.2d 1385 (9th Cir. 1978), aff'd, 440 U.S. 29, 9 BRBS 954 (1979). In addition, section 8(d)(3) of the Act prior to 1984, provided unrelated death benefits to survivors of employees who were receiving compensation for permanent partial disability pursuant to section 8(c)(21). Questions regarding which death cases may be subject to Pub. L. No. 92-576 and questions on how to handle deaths which occurred prior to the enactment of Pub. L. No. 92-576 should be referred to the NO.