Workers’ Compensation Fundamentals: Fatal Cases

Today’s blog will address how the Illinois Workers’ Compensation Act compensates surviving family members when a work injury causes the death of an employee. The November and December blogs dealt with various other aspects of the Illinois Workers’ Compensation Act. Please review those blogs for additional information about workers’ compensation in Illinois.

The benefits provided to the family of a deceased worker are limited to replacing the income of the deceased worker over time and reimbursing the family for burial expenses.  Due to these limitations, it is extremely important to speak with an attorney about the death of an injured worker in order to fully investigate the death and the potential for bringing a civil claim against a negligent third party in addition to filing a workers’ compensation claim. A civil claim against a negligent third party can possibly provide surviving family members with a greater recovery than what is provided under the Illinois Workers’ Compensation Act.

Who Can Apply for Death/Survivor Benefits Under the Act?

Only certain classes of surviving family members qualify for weekly death/survivor benefits (two-thirds of the employee’s gross average weekly wage during the 52 weeks before the injury, subject to minimum and maximum limits) under the Illinois Workers’ Compensation Act 820 ILCS 305/7:

Sec 7. The amount of compensation which shall be paid for an accidental injury to the employee resulting in death is:

(a) If the employee leaves surviving a widow, widower, child or children, the applicable weekly compensation rate computed in accordance with subparagraph 2 of paragraph (b) of Section 8, shall be payable during the life of the widow or widower and if any surviving child or children shall not be physically or mentally incapacitated then until the death of the widow or widower or until the youngest child shall reach the age of 18, whichever shall come later; provided that if such child or children shall be enrolled as a full time student in any accredited educational institution, the payments shall continue until such child has attained the age of 25. In the event any surviving child or children shall be physically or mentally incapacitated, the payments shall continue for the duration of such incapacity.

You will note from the above paragraph that the death/ survivor benefits are designed to compensate the widow or widower of the deceased person and/or the deceased person’s children (up until the age of 18, or 25 if the child is a full time student). If a spouse or child exist, the benefits go to them because of the emphasis on replacing income of the deceased worker.  If an injured employee did not leave a spouse or child, it may be possible for other classes of persons to receive death/survival benefits under the Illinois Workers’ Compensation Act:

(b) If no compensation is payable under paragraph (a) of this Section and the employee leaves surviving a parent or parents who at the time of the accident weretotally dependent upon the earnings of the employee then weekly payments equal to the compensation rate payable in the case where the employee leaves surviving a widow or widower, shall be paid to such parent or parents for the duration of their lives, and in the event of the death of either, for the life of the survivor.

(c) If no compensation is payable under paragraphs (a) or (b) of this Section and the employee leaves surviving any child or children who are not entitled to compensation under the foregoing paragraph (a) but who at the time of the accident were nevertheless in any manner dependent upon the earnings of the employee, or leaves surviving a parent or parents who at the time of the accident were partially dependent upon the earnings of the employee, then there shall be paid to such dependent or dependents for a period of 8 years weekly compensation payments at such proportion of the applicable rate if the employee had left surviving a widow or widower as such dependency bears to total dependency. In the event of the death of any such beneficiary the share of such beneficiary shall be divided equally among the surviving beneficiaries and in the event of the death of the last such beneficiary all the rights under this paragraph shall be extinguished.

(d) If no compensation is payable under paragraphs (a), (b) or (c) of this Section and the employee leaves surviving any grandparent, grandparents, grandchild or grandchildren or collateral heirs dependent upon the employee’s earnings to the extent of 50% or more of total dependency, then there shall be paid to such dependent or dependents for a period of 5 years weekly compensation payments at such proportion of the applicable rate if the employee had left surviving a widow or widower as such dependency bears to total dependency. In the event of the death of any such beneficiary the share of such beneficiary shall be divided equally among the surviving beneficiaries and in the event of the death of the last such beneficiary all rights hereunder shall be extinguished.

(e) The compensation to be paid for accidental injury which results in death, as provided in this Section, shall be paid to the persons who form the basis for determining the amount of compensation to be paid by the employer, the respective shares to be in the proportion of their respective dependency at the time of the accident on the earnings of the deceased. The Commission or an Arbitrator thereof may, in its or his discretion, order or award the payment to the parent or grandparent of a child for the latter’s support the amount of compensation which but for such order or award would have been paid to such child as its share of the compensation payable, which order or award may be modified from time to time by the Commission in its discretion with respect to the person to whom shall be paid the amount of the order or award remaining unpaid at the time of the modification.

Paragraphs B through E of section 7 detail those who qualify for death/survivor benefits under the Act in the absence of a spouse or child, beginning with the parents of the deceased worker who were totally dependent on the worker’s income for survival. If there are no parents totally dependent on the income of the deceased worker, benefits may be paid to persons who are financially dependent on the employee at the time of death. If you feel that you may be entitled to death/survivor benefits under the Illinois Workers’ Compensation Act it is important to consult with an attorney.

Are Workers’ Compensation Death Benefits Capped at a Certain Amount?

Weekly death benefits under the Illinois Workers’ Compensation Act are subject to the Death Benefit Maximum under section 8(b)4.2

4.2. Any provision to the contrary notwithstanding, the total compensation payable under Section 7 shall not exceed the greater of $500,000 or 25 years.

If the deceased worker dies leaving a spouse, the spouse is entitled to weekly payments of a death benefit for up to $500,000.00 or for 25 years, whichever is greater. These benefits continue until the maximum amount is paid, the spouse dies, or remarries. In the event of remarriage, the spouse is entitled to an additional payment under section 7a of the Act:

In the event of the remarriage of a widow or widower, where the decedent did not leave surviving any child or children who, at the time of such remarriage, are entitled to compensation benefits under this Act, the surviving spouse shall be paid a lump sum equal to 2 years compensation benefits and all further rights of such widow or widower shall be extinguished.

In the event that the deceased worker leaves behind a dependent child, but no spouse, the children are entitled to benefits until the youngest is 18 or 25 in the case of a full time student. In addition, the weekly compensation payments shall in any event continue for a period of not less than 6 years, also found under section 7a of the Act:

If the employee leaves surviving any child or children under 18 years of age who at the time of death shall be entitled to compensation under this paragraph (a) of this Section, the weekly compensation payments herein provided for such child or children shall in any event continue for a period of not less than 6 years.

What is the Burial Benefit under the Illinois Workers’ Compensation Act?

The burial benefit is due to the person who pays for the deceased worker to be buried and is found in Section 7f of the Act:

(f) The sum of $8,000 for burial expenses shall be paid by the employer to the widow or widower, other dependent, next of kin or to the person or persons incurring the expense of burial.

The above information is only a partial synopsis of the death/survivor benefits contained in the Illinois Workers’ Compensation Act. An experienced attorney is needed to navigate the many aspects of the Act and to fully investigate the death of a loved one while working. The attorneys at Wolter Beeman Lynch & Londrigan, LLP have experience with fatal workers’ compensation cases and are available to help.