Death Benefits under Maryland’s Workers’ Compensation Act

Death benefits are one of the four types of workers’ compensation benefits in Maryland (the other three being medical expenses, disability benefits and vocational rehabilitation).  Death benefits are available to the survivors of a covered employee who dies as a result of a work-related disability.  In order for a survivor to qualify for death benefits, he or she must have been “dependent” on the covered employee at the time of the accidental personal injury, or in cases of occupational disease, at the time of disablement.  A dependent within the meaning of the Workers’ Compensation Act (“the Act”) is defined as someone who was receiving their “reasonable necessities” from the covered employee at the time of injury or disablement.

It is important to note that a determination of dependency is not based on the time of death.  In many cases, the date of injury or disablement may be well in advance of the time of death.  If a person is dependent on a covered employee at the time of death, but was not dependent at the time of injury or disablement, there is no entitlement to workers’ compensation death benefits. Accordingly, a surviving spouse may ordinarily not collect death benefits if he or she married the covered employee after the occurrence of the accidental injury or date of disablement.

Death benefits are only available if the death of a covered employee occurs within 7 years of the date of the accidental injury; however, there is no such time restriction for deaths caused by occupational disease.  In cases where the death of a covered employee is not simultaneous with the injury itself, an issue of causation may arise (especially where there are possible intervening causes).  The burden is on the covered employee’s survivors to demonstrate that the death was the result of the injury or disease.  Additionally, survivors must establish that there was a reasonable expectation of continued support, had the death of the covered employee not occurred.

In cases of death due to accidental injury, an application for death benefits must be filed within 18 months of the covered employee’s passing.  In cases of death due to occupational disease, the application must be filed within two years.  Generally, death benefits equate to two-thirds of the covered employee’s average weekly wage (“AWW”), not to exceed the State AWW, calculated at the time of accidental injury, or in cases of occupational disease, at the time of the “last injurious exposure” to the disease causing agent.  Increases in wages between the time of injury and time of death are immaterial.

Prior to July 2011, the Act distinguished between total and partial dependency.  Total dependency is where a dependent relies entirely on the earnings of the covered employee.  Partial dependency is where a dependent receives only part of their subsistence from the covered employee.  The degree of dependency is a factual question that the Workers’ Compensation Commission (“WCC”) decides on a case-by-case basis.  The total amount of death benefits that a covered employee’s survivors could collect would turn on whether the survivor was totally or partially dependent.

However, in July 2011, the Act was amended to eliminate the distinction between total and partial dependency (it is important to note that the 2011 amendments may not apply to some municipal corporation or county employees).  Now, death benefits are calculated pursuant to the covered employee’s contribution to the total “family income.”  More specifically, the WCC combines the AWW of the covered employee and all the dependents to determine family income.  The family income is then divided by the covered employee’s AWW to determine the percentage of the family income for which the covered employee accounted for.  The percentage of family income attributable to the covered employee is then multiplied by the covered employee’s actual AWW.  The resulting figure represents the total amount of death benefits that would be available to all of the dependents.

The WCC is authorized to apportion death benefits in cases where there is more than one dependent.  It is permissible for the WCC to give a greater award to certain dependents than to others.  The WCC may also issue an award to one dependent with the directive that the funds be used for the benefit of all dependents.  Such a determination is made in the Commission’s best judgment, based on the specific facts of a given case.

Death benefits may continue for a maximum of 144 months from the date of death, but must last for a minimum of five years.  So long as the dependents have collected for at least five years, death benefits terminate on the date that would have marked the 70th birthday of the covered employee.

Death benefits may continue beyond 144 months if a dependent spouse or dependent child is incapable of self-support because of a mental or physical disability that preexisted the covered employee’s death.  Death benefits continue for dependent children until the age of 18, and may continue for an additional five years thereafter if the dependent is enrolled full-time in an educational or vocational program approved by the State Department of Education.  With respect to the remarriage of a surviving spouse, death benefits terminate two years after the date of remarriage.

Dependency may encompass spouses, children, parents, grandparents, stepchildren, stepparents, disabled adult children, etc.  However, for dependents who are neither a dependent spouse nor dependent child, the collective total of death benefits awarded may not exceed $65,000 (as of 2012, this figure increases annually).  Talk to an attorney or review § 9-683.3 of the Act to get a full grasp of all the circumstances which may impact one’s continued receipt of death benefits.

Lastly, in addition to the monetary compensation for which a dependent may be entitled, workers’ compensation death benefits also cover funeral expenses up to a total amount of $7,000.