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Death Benefits,Things You Should Know (Part III)

As a follow-up to parts I & II of this subject, the extent of dependency, whether total or partial, is very significant issue in death cases as it affects the amount that the “dependent” will receive under the law based upon that classification. Most of the time, this is determined by first seeing if the particular dependent falls within one of the presumptions that govern dependency in death cases.

For example, if the surviving spouse earned less than $30,000 in the 12 months before the injured worker’s death, he or she will be presumed to be total dependent and will be entitled to the death benefit made reference to in my previous blog.  Likewise, a minor child or child (of any age) who is mentally or physically incapacitated and unable to earn is a total dependent if they were living with the deceased parent/employee at the time of their death of that employee was otherwise legally responsible for that child at the time of death.

Again, these are important distinctions, as total dependents receive a greater share of the death benefit – as they should. And, depending on the number of total dependents (see prior blog) receive death benefits to the exclusion of any partial dependent or dependents.

Finally, absent a presumption, we must often act like a bookkeeper or accountant and literally look whether the possible dependent has money coming in from other sources,  how much that money is, the nature and extent of their expenses and the manner in which of the amount that the deceased employee assisted with their support.  Pretty vague, I know, but that’s because the factual circumstances vary so much from case to case and are limitless.  A claimant for the death benefit has the burden of proof regarding their entitlement both as to qualifying relationship and the extent to which they were supported by the injured worker.

Richard Irwin

Mr. Irwin is a recognized specialist in Workers’ Compensation law. He has been certified as a specialist by the State Bar of California since 1995. He limits his practice to handling only workers’ compensation cases. View Attorney Richard Irwin's Attorney Bio Here.

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