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I. INTRODUCTION - Back to Table of Contents
The Illinois Worker's Compensation Act provides benefits to certain dependents of employees whose deaths result from industrial accidents. As with other workers' compensation claims, the death must arise out of and in the course of employment.
Section 7 of the Act contains the essential provisions relating to death claims. The primary issues addressed in Section 7 are the identification of those who are entitled to receive benefits, and the amount of the benefits payable.
A. Limitations
The limitations for death claims is controlled by Section 6(d) of the
Act which requires that an application for death benefits be filed with
the Illinois Industrial Commission within three years after the date of
death where no compensation has been paid or within two years after the
last payment of compensation where any has been paid, whichever is later.
Where the beneficiaries are mentally incapacitated or minors, the limitation
period is tolled until such time that a conservator or guardian is appointed.
Sullivan
v. State, 10 Ill. Ct. Cl. 11 (1937).
In claims arising out of exposure to asbestos or radiological materials, the death must occur within 25 years after the last day that the employee was exposed. In addition, disablement must occur within three years after the last date of exposure. Goodson v. Industrial Comm., 190 Ill. App. 3d 16, 545 N.E.2d 975, 137 Ill. Dec. 214 (1st Dist. 1989).
B. Compensability
The threshold question in all workers' compensation cases, including
death cases, is whether the injury or death arose out of and in the course
of employment. The issues relating to medical causation and whether the
claim occurred in the course of employment are resolved in the same way
in death cases as in other cases. There can be evidentiary difficulties
caused by the lack of direct testimony for the petitioner where there is
a death. The burden is on the petitioner to show that some act of employment
was a causative factor (not necessarily the only cause or the principal
cause) in the employee's death. Sears, Roebuck & Co. v. Industrial
Comm., 79 Ill. 2d 59, 402 N.E.2d 231, 37 Ill. Dec. 341 (1980).
A good example of the evidentiary problems that can be created for a claimant when a death occurs is found in William G. Ceas & Co. v. Industrial Comm., 261 Ill. App. 3d 630, 633 N.E.2d 994, 199 Ill. Dec. 198 (1st Dist. 1994). On April 6, 1988, the deceased, Carol Pellegrino, fell down a flight of stairs while working in a building in which the employer was a tenant. As a result of the fall, she suffered a subdural hematoma and died on April 12, 1988. Her surviving husband and son sought death benefits pursuant to Section 7(a) of the Workers' Compensation Act. The arbitrator awarded benefits to the claimants, and the Industrial Commission affirmed. The First District Appellate Court issued two decisions. The first decision unanimously reversed the Industrial Commission and found that there was insufficient evidence to show that the fall was caused by a work-related risk. There was no dispute that the fall was the cause of the decedent's death. The appellate court held that where there is an unexplained fall and no evidence that there was anything wrong with the condition of the stairs, there would be no finding of compensability. Since the fall was unwitnessed, there was no testimony concerning the reason for the employee's fall, and the appellate court would not speculate that it was caused by a hazard uniquely related to the decedent's employment.
The second decision upheld the Industrial Commission decision and found that there was sufficient evidence in the record to support the Industrial Commission's finding that the petitioner's fall could have been the result of a fall caused by a risk related to work. The court stated:
From these facts, the Commission could have inferred the following. At the end of a workday, decedent had been told by her boss to prepare and mail a number of Federal Express envelopes. It was typical of the boss to make this type of last-minute demand of decedent. Decedent rushed to prepare the employer's envelopes. She then hurriedly left the office. Her immediate destination was the Federal Express box located on the premises where she would mail the envelopes. In the process of quickly going down the stairs, decedent lost her footing, fell down the stairs and incurred the fatal injury. But for the employer's habit of requiring last-minute preparation and mailing of Federal Express envelopes and the resulting stress that it placed on decedent, there would have been no fatal fall.Given these permissible inferences, claimant proved that the risk of this type of injury to decedent was increased as a consequence of her work. Orsini v. Industrial Comm., 117 Ill. 2d 38, 509 N.E.2d 1005 (1987).
The court also stated that while Illinois denies compensation for idiopathic falls, it awards compensation for unexplained falls. The Illinois Supreme Court has previously held that unexplained deaths are not compensable. Northwestern Yeast Co. v. Industrial Comm., 378 Ill. 195, 37 N.E.2d 806 (1941); Cannon Construction Co. v. Industrial Comm., 38 Ill. 2d 584, 233 N.E.2d 356 (1968).
C. Independent Cause of Action
A claim for benefits under Section 7 of the Act is not derivative of
the employee's claim but constitutes an independent cause of action on
the part of the employee's dependents. Smith v. Industrial Comm.,
128 Ill. App. 3d 343, 470 N.E.2d 1099, 83 Ill. Dec. 679 (5th Dist. 1984),
affirmed
and remanded, 109 Ill. 2d 52, 485 N.E.2d 335, 92 Ill. Dec. 524 (1985).
In Owens Corning Fiberglas Corp. v. Industrial Comm., 198 Ill. App. 3d 605, 555 N.E.2d 1233, 144 Ill. Dec. 714 (4th Dist. 1990), the appellate court held that a widow had an independent cause of action for death benefits under the Illinois Workers' Compensation Act separate from an award of disability benefits made to the decedent prior to his death. In this case, the claimant was awarded permanent partial disability benefits (PPD) for asbestos exposure. The court held that his death created an independent claim for death benefits held by his surviving spouse, and that the prior award of PPD was separate from the wife's claim for death benefits.
In Allen v. National Starch Chemical Co., 91WC42168 93 IIC 0617, May 19, 1993, 1 ILWCLB 1085, the Illinois Industrial Commission held that a permanency award was not abated by a decedent's death and was payable to his beneficiary. The surviving spouse of a deceased employee is not only entitled to a permanency award previously entered, but also to death benefits as it is an independent cause of action.
II. ELIGIBLE BENEFICIARIES - Back to Table of Contents
Once the initial requirements of jurisdiction, employee/employer relationship, accident, notice and causation have been established, the eligibility of those claiming benefits must be determined. Section 7 of the Act creates four mutually exclusive levels of priority for potential beneficiaries which are listed below in the order of precedence.
A. Widows, Widowers and Certain Children
Surviving spouses are eligible to receive benefits regardless of dependency.
Subject to the aggregate limitation of $250,000 or 20 years whichever is
greater, benefits flow for the life of the spouse or until remarriage of
the surviving spouse. Upon remarriage, the spouse is entitled to a lump
sum equal to two years compensation. It should be noted that remarriage
does not terminate benefits when there are eligible children being supported
by the surviving spouse. Interlake, Inc. v. Industrial Comm.,
95 Ill. 2d 181, 447 N.E.2d 339, 69 Ill. Dec. 122 (1983).
Children are specifically defined by the Act in Section 7(a):
The term "child" means a child whom the deceased employee left surviving, including a posthumous child, a child legally adopted, a child whom the deceased employee was legally obligated to support or a child to whom the deceased employee stood in loco parentis. The term "children" means the plural of "child."Unlike a surviving spouse, the eligibility of children is conditioned on the dependency of the child on the deceased employee. Dependency at this level is established if the child is:The term "physically or mentally incapacitated child or children" means a child or children incapable of engaging in regular and substantial gainful employment.
1. Illegitimate Children
In Dillon v. Industrial Comm., 195 Ill. App. 3d 599,
552 N.E.2d 1082, 142 Ill. Dec. 341 (1st Dist. 1990), the Industrial Commission
decision denying benefits to an illegitimate child was affirmed. The claimant
was allegedly the illegitimate daughter of a deceased truck driver. The
illegitimate child was born to a woman married to someone other than the
deceased employee. The court held that absent proof such as a blood test
excluding the husband of the daughter's mother from paternity, there could
be no recovery. The court relied heavily on the presumption that if a woman
is lawfully married at the time a child is born to her, there is a strong
presumption that the lawful husband is the father of the child. The court
held that, in the absence of evidence to the contrary, the presumption
of paternity to the lawful father had not been overcome.
2. In Loco Parentis
In order to establish that children are in loco parentis, the
claimants must show that the children considered the deceased a surrogate
parent, or that the deceased functioned as a parent, or that the deceased
considered himself to be the children's surrogate parent. Mid-American
Lines v. Industrial Comm., 82 Ill. 2d 47 (1980).
3. Illegal Marriages
In Sparling v. Industrial Comm., 48 Ill. 2d 332, 270
N.E.2d 411 (1971), the Supreme Court was presented with two claimants both
contending to be the widow of the deceased employee. Bette Lou Sparling
testified that she and the deceased were married on October 23, 1954, and
that they had one child born of that marriage. She and the deceased lived
together "on and off" until August of 1957. She then moved in with her
mother and did not live with the deceased again. They consulted about getting
a divorce in 1957, but it was never accomplished. Joan Sparling testified
that she was married to the deceased in Tijuana, Mexico, on October 6,
1956, but the documents to evidence the marriage had been lost. She had
two children fathered by the deceased and claimed that she did not know
of Bette Lou Sparling until after the decedent's death. The employee died
on November 10, 1966. The court held that the right of a widow to receive
compensation depends solely on the marital relationship. Since there was
no evidence that the first marriage had been dissolved, the court held
that the Mexican marriage was invalid. Thus, Bette Lou Sparling was entitled
to benefits.
4. Remarriage with Dependent Children
In Interlake, Inc. v. Industrial Comm., 95 Ill. 2d 181,
447 N.E.2d 339, 69 Ill. Dec. 122 (1983), an employee died and left a widow
and two children under the age of 18. The widow remarried prior to the
arbitrator's decision awarding her lifetime benefits for her use and the
care of her children. The respondent appealed the decision and contended
that the widow forfeited her "share" by remarriage and that her share passed
to her minor children who would be entitled to collect until they reached
the age of 18. The Supreme Court held that the clear language of the statute
provided for payment of death benefits for the life of the widow because
she did not remarry at a time when none of the decedent's children were
entitled to support.
In Stewart v. Industrial Comm., 115 Ill. 2d 337, 504 N.E.2d 84, 105 Ill. Dec. 215 (1987), the surviving spouse remarried following the entry of an award of benefits to the surviving spouse and the decedent's four children from a previous marriage who lived with their natural mother. The Court noted that Section 7(a) does not state what is to occur in the event that a surviving spouse remarries if the decedent left children who are eligible for benefits at the time of remarriage; it only states what is to occur if the decedent did not leave children who are eligible for benefits at the time of the surviving spouse's remarriage. The Court noted that Section 7(a) indicates that the primary evil the legislature intended to remedy was the hardship to families whose principal wage earner dies leaving a financially dependent spouse, especially when the surviving spouse is left with minor children to raise as a single parent. The Court construed Section 7(a) to require a lump sum settlement for a widow who, having no responsibility for the care or support of the decedent's minor children, remarries.
5. Students Under Twenty-Five
In Drives, Inc. v. Industrial Comm., 124 Ill. App. 3d
1014, 464 N.E.2d 1142, 80 Ill. Dec. 159 (4th Dist. 1984), the claimant
was attending an accredited educational institution at the time of her
father's death. She subsequently took a one year sabbatical from her educational
activities and then returned to the educational institution. The issue
on appeal was whether her subsequent marriage and interruption in her educational
activities terminated the respondent's obligation for death benefits. The
appellate court held that the legal obligation to support is no longer
a statutory requirement for benefits under Section 7. Thus, the fact that
the child under the age of 25 attending an accredited educational institution
was married had no bearing on the issue of whether or not she was entitled
to benefits. The court further held that a liberal reading of the statute
did not require that the benefits terminate upon her interruption in her
education. The court held that she was entitled to benefits at any time
that she was enrolled in an accredited educational institution and under
the age of 25.
6. Divorce
In George W. Kennedy Construction Co., Inc. v. Industrial Comm.,
152 Ill. App. 3d 114, 503 N.E.2d 1169, 105 Ill. Dec. 163 (2d Dist. 1987),
the petitioner claimed she was the lawful widow of a deceased employee
at the time of his death. The respondent denied benefits because, at the
time of Carl's death, the claimant and the employee were divorced. There
was no dispute that an order of default was entered against the claimant
on June 22, 1983, thereby dissolving the marriage. The employee was killed
on July 21, 1983. On August 9, 1983, forty-eight days after the entry of
the final dissolution judgment, the claimant filed a motion to vacate the
dissolution under Section 2-1401 of the Code of Civil Procedure. The motion
to vacate was allowed on September 28, 1983, on the basis that the order
of dissolution failed to adequately divide marital property and failed
to provide any provisions for the support of the claimant. The court held
that the order vacating the dissolution related back to the date of the
judgment. Therefore, the claimant was deemed to have been married to the
employee at the time of his death. The court went on to say that in the
absence of a claim that the order was procured by fraud or duress, it would
stand, and the claimant was entitled to benefits.
B. Parents Totally Dependent
If there are no eligible beneficiaries under Section 7(a) of the Act,
compensation is payable to any parent of the deceased employee who was
totally dependent upon that employee prior to the death. These payments
are made pursuant to Section 7(b) of the Act and are subject to the aggregate
limitations found in Section 8(b)(4.2) ($250,000 or 20 years, whichever
is greater).
C. Children and Partially Dependent
Parents
If there are no eligible beneficiaries under Sections 7(a) and (b)
of the Act, partially dependent parents or partially dependent children
who are not eligible under Section 7(a) may be eligible for benefits. A
child of the deceased employee is eligible for benefits under this subparagraph
if he or she was "in any manner dependent upon the earnings of the employee."
Parents are eligible under this subparagraph if they were "partially dependent
upon the earnings of the employee." Payment under this subparagraph of
the Act consists of eight years of weekly compensation payments at such
proportion as such dependency bears to total dependency. In the event of
the death of any beneficiary, the share of such beneficiary shall be divided
equally among the surviving beneficiaries. In the event of the death of
the last beneficiary, all rights under this paragraph shall be extinguished.
If there are no eligible beneficiaries under Sections 7(a), (b) or (c), grandparents, grandchildren or collateral heirs who were at least 50% dependent upon the earnings of the deceased employee are entitled to benefits for a period of five years at such proportion 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. In the event of the death of the last such beneficiary, all rights are extinguished.
III. DETERMINATION OF DEPENDENCY- Back to Table of Contents
Dependency is a question of fact to be decided by the arbitrator and Industrial Commission. Ritzman v. Industrial Comm., 353 Ill. 34, 186 N.E. 545 (1933). The test of dependency under the Workers' Compensation Act is whether the contributions of the deceased employee were relied upon by the claimant for a means of living, judging by position in life, and whether he or she was to a substantial degree, supported by the employee at the time of death. Diss v. Industrial Comm., 52 Ill. 2d 339, 288 N.E.2d 430 (1972). The burden of showing dependency is on the claimants and must be proven by a preponderance of evidence. City of Oglesby v. Industrial Comm., 342 Ill. 634, 174 N.E. 910 (1931). The mere showing of parentage or a lineal relationship raises no presumption of "dependency." Bauer & Black v. Industrial Comm., 322 Ill. 165, 152 N.E. 590 (1926).
A. Total Dependency
Neither destitution nor total dependency upon a decedent's income is
a prerequisite to meeting the requirements of total dependency under the
Workers' Compensation statute. In Biggerstaff v. Industrial Comm.,
171 Ill. App. 3d 845, 525 N.E.2d 1000, 121 Ill. Dec. 693 (1st Dist. 1988),
the First District Appellate Court held that an employee's mother was a
total dependent, because she would have become the object of public charity
absent support by the employee. The court looked to a number of factors,
including the fact that she did not work outside the home, received little
support from her husband, did not receive any social security and was dependent
upon her son for basic needs and refurbishing of her home.
The Workers' Compensation Act does not require one claiming compensation as a "total dependent" to be a pauper and entirely destitute except for the deceased employee's earnings. Obear-Nester Glass Co. v. Industrial Comm., 398 Ill. 342, 75 N.E.2d 892 (1947).
B. Partial Dependency
"Partial dependency" may exist even though the evidence shows that
claimant could have subsisted without the contributions of the deceased
employee. It does not require that the claimants would have been without
necessities or that they were without other means of support besides contributions
of the deceased employee. Ritzman v. Industrial Comm., 353
Ill. 34, 186 N.E. 545 (1933).
In American Steel and Wire Co. of New Jersey v. Industrial Comm., 411 Ill. 354, 104 N.E.2d 260 (1952), the court held that an able bodied father receiving $300 per month and two able bodied brothers could not collect benefits as dependents of a deceased employee as there was no showing of partial dependency. All three claimants were fully able to support themselves.
In Roseberry v. Industrial Comm., 33 Ill. 2d 520, 211 N.E.2d 702 (1965), the court held that the mother was not a partial dependent of a 19-year-old deceased son and was not entitled to workers' compensation benefits. The deceased son's earnings were minimal compared to his mother's, and she neither looked to, nor relied upon, his earnings for support or assistance consistent with her position in life.
C. Distribution of Benefits
The distribution of benefits is decided by the arbitrator and Industrial
Commission. In Mid-American Lines, Inc. v. Industrial Comm.,
82 Ill. 2d 47, 411 N.E.2d 254, 44 Ill. Dec. 285 (1980), the Supreme Court
held that the Industrial Commission can, in its discretion, award death
benefits to a widow with custody of the surviving children of the deceased
employee, including a posthumous child, a legally adopted child, a child
to whom the employee was legally obligated to support or a child to whom
the deceased employee stood in loco parentis. The award should not
have been prorated between the widow and widow's granddaughter, who stood
in
loco parentis to the deceased employee, in light of the fact that the
employer produced no evidence that the widow would fail to provide first-rate
care for her granddaughter.
IV. COMPUTATION OF BENEFITS - Back to Table of Contents
A. Medical and Burial Expenses
Section 7(f) of the Act provides that the sum of $4,200 for burial
expenses shall be paid by the employer to the widow or widower, other dependent,
next of kin or other person or persons incurring the expenses of burial.
In the event the employer failed to provide necessary first-aid, medical, surgical or hospital services, the employer shall pay the cost of those services to the persons entitled to compensation under Sections 7(a), (b), (c) or (d).
B. Death Benefits
The benefits payable under Sections 7(a), (b), (c) or (d) of the Act
are based on two-thirds of the employee's average weekly wage which is
calculated pursuant to Section 10 of the Act. The minimum weekly death
benefit is calculated as 50% of the state's average weekly wage for industries.
See the chart below.
| Accident Date | Minimum Death Rate | Maximum Death Rate |
| 7-15-91 to 1-14-92 | $ 242.19 | $ 645.84 |
| 1-15-92 to 7-14-92 | $ 245.90 | $ 655.73 |
| 7-15-92 to 1-14-93 | $ 251.30 | $ 670.13 |
| 1-15-93 to 7-14-93 | $ 258.06 | $ 688.14 |
| 7-15-93 to 1-14-94 | $ 266.64 | $ 711.04 |
| 1-15-94 to 7-14-94 | $ 267.35 | $ 712.92 |
| 7-15-94 to 1-14-95 | $ 270.84 | $ 722.24 |
| 1-15-95 to 7-14-95 | $ 275.78 | $ 735.41 |
| 7-15-95 to 1-14-96 | $ 278.05 | $ 741.45 |
| 1-15-96 to 7-14-96 | $ 285.19 | $ 760.51 |
| 7-15-96 to 1-15-97 | $ 287.89 | $ 767.71 |
| 1-15-97 to 7-14-97 | $ 292.94 | $ 781.17 |
| 7-15-97 to 1-14-98 | $ 298.87 | $ 796.97 |
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Death benefits are also subject to a maximum which is calculated as 133 1/3 percent of the state's average weekly wage for industries. See chart above.
Unlike TTD and PPD minimum rates, these rates can be higher than the deceased employee's average weekly wage. For example, if the decedent died on 7/16/91 and had an average weekly wage of $200, the beneficiaries would be entitled to weekly death benefits of $242.19.
C. Aggregate Limitations
Benefits payable under Section 7 of the Act are subject to an aggregate
limitation of $250,000 or 20 years whichever is greater.
D. Lump Sum Settlement
Section 7(g) of the Act provides that a widow, widower or child may
petition the Commission for a partial lump sum not to exceed 100 weeks
of compensation capitalized at their present value based upon the annual
interest rate of 3%. This type of lump sum does not require the consent
of the employer and may be ordered by the Commission over the employer's
objection upon a showing that such partial lump sum is in the best interest
of such beneficiary or beneficiaries. A petition for a partial lump sum
under this paragraph must be brought within 18 months after the decedent's
death.
Lump sum settlement agreements may also be entered into between the employer and beneficiaries on a consensual basis under Section 9 of the Act.
Section 23 of the Act provides that a minor death beneficiary, by parent or grandparent as next friend, may compromise and enter into settlement contracts and, on approval by the Commission, have the same force and effect as though the minor had been an adult.
E. Illegally Employed Minors
Section 7(h) of the Act provides that if the injured employee is under
the age of 16 at the time of the accident and is illegally employed, the
amount of compensation payable under Sections 7(a), (b), (c), (d) and (f)
shall be increased by 50%.
F. Foreign Dependents
If the deceased employee's dependents do not reside in the United States,
Mexico, or Canada, Section 7(I) of the Act provides that benefits payable
under Sections 7(a), (b) and (c) are decreased by 50%, except otherwise
provided by treaty. The United States Supreme Court held that this provision
of the Illinois Workers' Compensation Act is constitutional. Jarabe
v. Industrial Comm., 172 Ill. 2d 345, 666 N.E.2d 1, 216 Ill. Dec.
833 (1996), cert. denied, 117 S. Ct. 300, 136 L. Ed. 2d 218 (1996).
G. Credit for Life Insurance
Section 4(I) of the Act provides that if an employer elects to obtain
a life insurance policy on his employees, he may also elect to apply such
benefits in satisfaction of all or a portion of the death benefits payable
under the Act, in which case the employer's compensation premium shall
be reduced accordingly.
An employer is not entitled to a credit for the amount paid to a deceased employee's beneficiary under an employer's group life insurance policy when the employee was not the policy's sole beneficiary, and the policy did not apply the policy's benefits in satisfaction of death benefits under the Workers' Compensation Act. Further, if the collective bargaining agreement required the employer to provide such life insurance, then the benefits could not be used to satisfy all or a portion of the death benefits payable under the Workers' Compensation Act. U.S. Steel Corp.-South Works v. Industrial Comm., 147 Ill. App. 3d 398, 499 N.E.2d 57, 101 Ill. Dec. 690 (1st Dist. 1986).
V. AREAS OF POTENTIAL FRAUD - Back to Table of Contents
There are virtually an unlimited number of ways claimants try to cheat the workers' compensation system. Fortunately, in a death case, the petitioner is precluded from symptom magnification.
A. Widows and Widowers
A widow who collects benefits under Section 7(a) without dependent
children has clear motivation not to remarry. It is important to monitor
such claimants in order to discover remarriage if it occurs. It should
be noted, however, there is no penalty under the Workers' Compensation
Act, when a widow lives with a man without being married.
The marital status of any Illinois resident can be determined by filing a request for verification of marriage with the Illinois Department of Public Health, Division of Vital Records with a $5.00 fee at the following address:
Illinois Department of Public HealthBenefits to widows and widowers should be monitored carefully by verifying marital status on a regular basis.
Division of Vital Records
605 West Jefferson
Springfield, IL 62702-5097
(217) 782-6553
B. Children and Dependency
Whether claimants are in fact children of the deceased employee is
a question of fact to be decided by the arbitrator and Industrial Commission.
If the child is born of the marriage of the deceased employee, then there
is a presumption of a parental relationship. Dillon v. Industrial
Comm., 195 Ill. App. 3d 599, 552 N.E.2d 1082, 142 Ill. Dec. 341
(1st Dist. 1990). In all other situations, the burden to prove a parental
relationship is on the claimant. Fraud in this area can be prevented by
forcing the petitioner to strictly comply with its burden of proof at arbitration
or prior to settlement.
Children claiming benefits while attending an accredited institution need to be monitored carefully to confirm continuing attendance at the institution.
The parental status of illegitimate children should be shown by scientific evidence as suggested in Dillon v. Industrial Comm., 195 Ill. App. 3d 599, 552 N.E.2d 1082, 142 Ill. Dec. 341 (1st Dist. 1990).
The dependency of parents, grandparents, and collateral heirs should be strictly scrutinized. All relevant financial documents of the decedent and claimants should be obtained by subpoena and carefully analyzed before issuing benefits.
When multiple claimants exist and dispute the other's claims, arbitration is necessary. The Industrial Commission will make a factual determination of eligibility and dependency which will be binding on all the claimants.