"When Death is the Beginning: What Happens When Employees Die on the Job?"
For the November 2021 issue of CLM Magazine, published by the Claims and Litigation Management Alliance, Traci Teer and Joanna Hair authored an article exploring the compensability of claims when an employee suffers a work-related accident that results in their death.
“In looking at these unfortunate eventualities for many businesses, we need to consider whether the employee’s death is compensable, what sort of presumptions exist under the law, who may receive benefits, and what benefits are payable and for how long,” Teer and Hair wrote.
While workers’ compensation laws vary by state, an employee’s death must arise out of and in the course of employment to be compensable in Georgia. The burden of proof involving an employee death is the same as that in a nonlethal injury case: there must be a preponderance of competent and credible evidence that the employee’s death arose out of and in the course of employment. And the burden of proof falls on the claimant, which is typically a spouse or other family member in claims where the employee is deceased.
The second most pressing question in such claims is who is eligible to recover benefits, which would in most cases be a dependent of the deceased – whether a spouse or minor children. States vary on what qualifies as a dependent, which becomes a factor in benefit eligibility. For example, Georgia does not recognize common law marriage, nor does it recognize a live-in girlfriend or boyfriend as a dependent, while others might.
In addition to exploring what benefits are owed and for how long if a claim is compensable, Teer and Hair also highlighted defenses and best practices in these types of claims, including:
• As in all on-the-job injuries, investigation is key, and the sooner it is implemented, the more likely defenses may be identified and exposure limited;
• Determining the cause of death is essential, and in some states (like Georgia), the employer may seek an order for an autopsy from the State Board of Workers’ Compensation;
• Interviews of witnesses and co-workers are especially important in these cases as the injured employer is not available; and,
• A thorough investigation of the accident and death, as well as a meaningful examination of the employee’s life and family, are often the necessary crux to identify defenses and minimize exposure.
For the full article, please click here.