Over the years, driving trucks has consistently been rated one the most deadly
occupations in the country. While employers are taking steps to reduce the risk
faced by their drivers, the nature of the business inevitably leads to circumstances
in which drivers lose their lives. In this article, we will take a look at how a death
claim should be handled in accordance with the provisions of the North Carolina
Workers’ Compensation Act and the Workers’ Compensation Rules of The North Carolina
Industrial Commission.

N.C.G.S. § 97-38 describes, in general, (1) when workers’ compensation benefits are due to an
employee whose death results proximately from a compensable injury or occupational disease;
(2) the amount of benefits to be paid; and (3) the persons entitled to receive those benefits. According
to N.C.G.S. § 97-38, if an employee’s death results proximately from a compensable
injury or occupational disease, certain dependents are entitled to 500-weeks of weekly payments
(paid at the employee’s compensation rate) and up to $10,000.00 in burial expenses. In
determining who is entitled to the benefits, the Act specifically defines certain individuals as
being wholly dependent or partially dependent. A person who is “wholly dependent” is someone
that is “wholly dependent for support upon the earnings of the deceased employee at the
time of the accident…” According to N.C.G.S. § 97-39, a widow, widower, or child shall be
conclusively presumed to be wholly dependent for support upon the deceased employee. If an
individual is deemed to be “wholly dependent,” then that individual will be entitled to all benefits
due to the exclusion of all others, including those considered partially dependent. If there
is more than one individual considered to be “wholly dependent” then the benefits due will be
split among those individuals.

If there are no individuals who are “wholly dependent,” then any person who is partially dependent
for support upon the earnings of the employee at the time of the accident shall be entitled
to benefits. If there are no individuals either wholly or partially dependent on the employee at
the time of the accident, then benefits will be paid to the Employee’s “next of kin” as defined
by N.C.G.S. § 97-40. If there is no individual that is wholly dependent, partially dependent or
“next of kin” then no benefits are due, except for the burial expense of up to $10,000.00.

While N.C.G.S. § 97-38 describes when benefits are due, in what amount, and to whom,
Rule 409 of the Workers’ Compensation Rules of The North Carolina Industrial Commission
details the specific procedure that needs to be followed when handling a death claim. According to Rule 409, within 5-days of knowledge of an occurrence of a death resulting from injury or occupational disease allegedly arising out of and in the course of employment, an employer shall file a Form 19 with the Commission. Since that provision of the Rule includes the word “allegedly,” I believe that a Form 19 should be filed even if the death claim is going to be denied. In addition to the Form 19, an employer, carrier or administrator shall file a Form 29, Supplemental Report for Fatal Accidents, within 45 days of knowledge of a death or allegation of a death resulting from injury or occupational disease arising out of and in the course of employment. Of note, the Form 29 includes a section wherein Dependents are to be listed, and Rule 409 specifically states that an employer, carrier, or administrator shall make a good faith effort to discover the names and addresses of potential beneficiaries under N.C.G.S. § 97-38.

If the death claim is going to be accepted as compensable and there are no questions as to the
identity of the proper beneficiaries, Rule 409 allows the parties to submit a Form 30, Agreement
for Compensation for Death, to the Commission. In addition to the Form 30, the parties
must submit a death certificate and any relevant marriage certificates or birth certificates for
any dependents. Of note, if the death claim is going to be accepted as compensable but there
is doubt as to the correct beneficiaries, then Rule 409 permits the employer, carrier, or administrator
to file a Form 33, Request for Hearing, for a determination by a deputy commissioner
as to the correct beneficiaries. We suggest that if there is any question at all with regard to the
correct beneficiaries, that a Form 33 be filed and a full evidentiary hearing be held before a
deputy commissioner.

Rule 409 also gives parties the option of submitting a written opinion and award to be reviewed
and approved by the Commission in lieu of presenting testimony at a hearing before a
Deputy Commissioner. Documentation must be submitted with a proposed opinion and award,
including, but not limited to, a Form 22, affidavits regarding the identity of dependents, and
medical records.

If the death claim is going to be denied, then an employer, carrier, or administrator must send
a letter of denial stating the reasons for the denial and advising of the right of a hearing to all
potential beneficiaries, their attorneys of record, and any healthcare providers that have submitted
bills. Any potential beneficiary can then request a full evidentiary hearing.

Some cases involving death benefits are inevitably going to include potential beneficiaries
who are minors or incompetents. Rule 409 states that a guardian ad litem must be appointed
in any cases involving potential beneficiaries who are minors or incompetents. Payments due
to be eficiaries who are minors must be paid directly to the parent as natural guardian of the
minor for the use and benefit of the minor if the minor remains in the physical custody of the
parent. If the minor is no longer in the physical custody of the parent, payments must be made
to some other person appointed by a court of competent jurisdiction.

While we hope to never have to handle a claim involving the death of an employee, the nature
of truck driving necessitates that we be aware of our duties, responsibilities, and options
should such an unfortunate event occur.

 

Photo of attorney Joseph Delfino

Joe Delfino
Charlotte
704.602.8012
jdelfino@hedrickgardner.com

The information published in Hedrick Gardner Alerts is general in nature and not intended to take the place of legal advice on any particular matter. © 2018 Hedrick Gardner Kincheloe & Garofalo LLP