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Dependency Benefits in Georgia Workers’ Compensation Death Cases

In our Georgia workers compensation law practice, one of the most tragic situations that we run across is someone dying as a result of a work-related injury.  It can be unbelievably difficult for loved ones who were dependent on the individual who passed away.

In addition to dealing with the grief of losing their loved one, they also have to worry about how they are going to survive financially.  Georgia’s workers compensation law does provide some financial help.  When a work-related death occurs, the employer’s workers compensation insurance company should pay benefits to dependents of the deceased worker.

But, who qualifies as a dependent and what benefits do dependents receive? This article will discuss the answers to those questions under Georgia’s workers compensation rules.

Presumed total dependents – spouse and children

The initial question to answer in a case of a work-related death is what individuals were dependent on the deceased worker.  In some cases, there may be no dependents. In other cases, there are many dependents.

People with certain relationships are automatically presumed to be dependent under the Georgia workers compensation law.  For example, the spouse and children of the injured worker are automatically presumed to be totally dependent.

This presumption means that the spouse and children do not have to establish actual dependence to receive dependency benefits.  Their dependence is presumed based on their relationship with the deceased employee.

It is also important to know that “children” does not just include biological children.  For purposes of dependency benefits, “children” also includes:

  • Dependent stepchildren,
  • Legally adopted children,
  • Posthumous children, and
  • Acknowledged children born out of wedlock.

Dependents other than spouse and children

In addition to the spouse and children, other people who were dependent in whole or in part on the deceased worker can qualify as total or partial dependents.  However, in order to recover benefits, those individuals have to prove that they were actually dependent on the deceased worker.

Georgia law defines a dependent as someone who looked to the injured worker for financial support or support in order to maintain the standard of living to which that person had become accustomed.  So, in order to establish dependency, it is not necessary to prove that the potential dependent would not have been able to survive without the injured worker’s contributions as long as the person looked to the deceased worker to maintain the standard of living to which they were accustomed.

Who receives dependency benefits?

It is important to understand that there is a priority among dependents under Georgia’s workers compensation law.  This priority determines which determines who will draw dependency benefits if there are multiple dependents.

There are two types of dependents or beneficiaries:

  1. Primary
  2. Secondary

Only the spouse and children of the injured worker are primary beneficiaries.  Everyone else is a potential secondary beneficiary.

If there are any primary beneficiaries, then the entire dependency benefit will be split between the primary beneficiaries unless the primary beneficiaries waive the right to receive benefits.  Secondary beneficiaries are only entitled to dependency benefits in two situations:

    1. If there are no primary beneficiaries
    2. If all primary beneficiaries waive their rights to benefits.

How are dependency benefits paid?

Dependency benefits are paid just like the temporary total disability benefits that an injured worker receives when they are unable to work as a result of a work injury.  This means that they are paid on a weekly basis.

Also, the amount of the dependency benefits in Georgia is determined the same way as temporary total disability.  That means it is based on two-thirds of the deceased worker’s average weekly wage.

Georgia has a cap on the maximum weekly dependency benefit.  That cap varies depending on the date of injury.

If there is just one primary beneficiary, then that person will receive the entire dependency benefit.  If there is more than one primary beneficiary, then the dependency benefit is split between the primary beneficiaries.

In most cases if there is a surviving spouse and surviving child or children, the entire dependency benefit is paid to the spouse to use for the benefit of the spouse and the children.  However, the Georgia State Board of Workers’ Compensation does have the power to determine that the dependency benefit should be paid differently if necessary.  This often happens when the surviving spouse is not the parent of one or more of the children who are eligible to receive benefits.

The spouse and children of an injured worker are primary dependents under the law in Georgia

How long can a surviving spouse receive dependency benefits?

In general, dependents only receive dependency benefits while they remain dependent on the deceased worker.  The Georgia Workers’ Compensation Act provides some specific limits on the time frame for receiving dependency benefits.

O.C.G.A. 34-9-265 states that the dependency benefits of a spouse will be terminated if the spouse remarries or cohabits with someone of the opposite sex.  Apart from those situations, however, the spouse usually will continue receiving dependency benefits until he or she reaches the maximum limit allowed by law.

In the case of a spouse, dependency benefits are limited to a total amount.  In 2022, the maximum total amount a spouse could draw was $290,000.  This dollar cap usually changes whenever the temporary total disability maximum amount changes.

However, this maximum amount only applies if there were no other dependents at the time of the employee’s death.  If there were dependent children or other dependents, the spouse may be able to receive benefits until age 65 or for a period of 400 weeks, even if this amount goes over the dollar cap.

How long can a child receive dependency benefits

The other type of primary beneficiaries are children.  Children’s dependency benefits are generally limited by age.  Most children continue to receive dependency benefits until age 18.

There are a couple of exceptions that allow children to draw benefits past 18 years of age.  The first exception allows a child to continue to receive benefits up until age 22 if the child remains enrolled full time in good standing in high school or a postsecondary institution such as college or technical schools.

Also, if the dependent child is physically or mentally incapable of earning a living, then there is no age limit.  The child can receive benefits as long as the child remains dependent.

Who can qualify as a secondary beneficiary?

Secondary beneficiaries are dependents other than the spouse or children of the deceased worker.   These dependents could include family members (such as a mother, father, grandchild, or grandparent) or friends.

To receive benefits, the dependent’s dependency on the deceased worker must have existed at the time of the deceased worker’s work injury.  It also must have existed to some extent at least three months prior to the work-related injury.

When can secondary beneficiaries receive benefits?

The workers’ compensation law in Georgia provides benefits for secondary beneficiary dependents only in instances where there are no primary beneficiary dependents (spouse and/or children) receiving benefits.  When there are no primary dependents receiving benefits, those people who qualify as secondary dependents can receive benefits.

Types of secondary beneficiaries

There are two categories of secondary dependents:

  1. Total secondary dependents
  2. Partial secondary dependents.

Total secondary dependents are people who were totally dependent on the deceased worker for support at the time of the work accident.  Partial secondary dependents are individuals who were only partially dependent on the deceased worker for support at the time of the work accident.

As long as there is a secondary beneficiary who is a total dependent, then no partial secondary dependent can receive benefits.  If there are no primary beneficiaries and no totally dependent secondary beneficiaries, then partial secondary dependents can receive benefits.

Georgia's workers compensation law limits how long dependents can receive dependency benefits

How long can secondary beneficiaries receive benefits?

There is no specific time frame provided for how long totally dependent secondary beneficiaries can receive benefits.  The law only specifies that they can receive benefits “during their dependency”.  Potentially, a totally dependent secondary beneficiary could draw workers’ compensation dependency benefits for the rest of their life.

For partially dependent secondary beneficiaries, there is a more specific limit.  Benefits end at age 65 or after 400 weeks of benefits, whichever provides greater benefits.  Of course, benefits would also end sooner if the person stops being dependent.

Time limits for filing for dependency benefits

Workers’ compensation deaths are tragic events.  After the death, there are so many things on the mind of family and friends that workers’ compensation benefits are probably the last thing they are thinking about.

However, it is important to know, that there are time limits known as statutes of limitations requiring that claims for dependency benefits be filed within a certain time of the work related injury or death.  It can be very important to act quickly so that you do not lose your rights.

What if I have other questions about workers compensation?

Georgia’s workers compensation system can be very confusing.  You have to worry about getting the treatment you need and paying your bills while also worrying about not missing any deadlines that could cause you to lose your right to receive workers compensation benefits.

If you have questions, I would recommend that you try to get answers.  To find out more about how to schedule a time to talk to me about your workers compensation questions, just read this short article.

Jason Perkins is an attorney who specializes in representing injured workers.  He regularly publishes videos and write blog articles about Georgia’s workers compensation system and issues that are important to injured workers and their families. To be notified of Jason’s new workers compensation videos, subscribe to his Georgia Workers Compensation Video Series channel on YouTube by clicking the subscribe button below.

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Jason Perkins

Workers' Compensation Attorney

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