Section 19(f) of the LHWCA provides:
An award of compensation for disability may be made after the
death of an injured employee.
33 U.S.C. § 919(f).
Section 8(d) of the LHWCA provides:
(1) If an employee who is receiving compensation for permanent
partial disability pursuant to section 8(c) (1)-(20) dies from causes
other than the injury, the total amount of the award unpaid at the
time of death shall be payable to or for the benefit of his survivors,
as follows:
(A) if the employee is survived only by a widow or widower,
such unpaid amount of the award shall be payable to such widow or
widower,
(B) if the employee is survived only by a child or children,
such unpaid amount of the award shall be paid to such child or
children in equal shares,
(C) if the employee is survived by a widow or widower and
a child or children, such unpaid amount of the award shall be
payable to such survivors in equal shares,
(D) if there be no widow or widower and no surviving child
or children, such unpaid amount of the award shall be paid to the
survivors specified in section 9(d) (other than a wife, husband, or
child); and the amount to be paid each such survivor shall be
determined by multiplying such unpaid amount of the award, the
excess amount shall be divided among such survivors pro rata
according to the amount otherwise payable to each under this
subparagraph.
(2) Notwithstanding any other limitation in section 9, the total
amount of any award for permanent partial disability, pursuant to
section 8(c)(1)-(20) unpaid at time of death shall be payable in full
in the appropriate distribution.
(3) An award for disability may be made after the death of the
injured employee. Except where compensation is payable under
section 8(c)(21), if there be no survivors as prescribed in this
section, then the compensation payable under the subsection shall be paid to the special fund established under
section 44(a) of this Act.
33 U.S.C. § 908(d).
[ED. NOTE: For purposes of third party settlements and credits in death claims, see Topic 33 infra,
particularly, 33.6 and 33.7.]
A worker's claim for disability benefits and a survivor's claim for death benefits involve two
separate and distinct rights. See, e.g., Abercrumbia v. Chaparral Stevedores, 22 BRBS 18 (1988) aff'd
on recon. 22 BRBS 18 (1989); Alneida v. General Dynamics Corp., 12 BRBS 901 (1980); Henry v.
George Hyman Const. Co., 749 F.2d 63 (D. C. Cir. 1984)17 BRBS 39 (CRT) (1984); Hampton Roads
Stevedoring Corp. v. O'Hearne, 184 F.2d 76, 79 (4th Cir. 1950)
("When death occurs, a new cause of
action arises."); International Mercantile Marine Co. v. Lowe, 93 F. 2d 663, 664 (2d. Cir. 1938), cert.
denied, 304 U.S. 565 (1938). See also Travelers Ins. Co. v. Toner, 190 F.2d 30 (D.C. Cir. 1951), cert.
denied, 342 U.S. 826 (1951). Benefits paid for disability or death under a state settlement may only be
used to offset like benefits owed under the LHWCA. See Pigott v. General Dynamics Corp., 23 BRBS
30(1989); Ponder v. Peter Kiewit Sons' Co., 24 BRBS 46 (1990) (Held: Decedent's disability benefits
due under the LHWCA and a claimant's death benefits under a California settlement may only be offset
against her survivor's benefits under the LHWCA.).
In Liuzza v. Cooper/T. Smith Stevedoring Co., Inc., 35 BRBS 112 (2001), the Board held that
the employer's overpayment of disability benefits to the deceased could not be credited or offset against
it's liability for death benefits to the decedent's widow because disability and death claims were separate
and distinct claims, and disability payments were not advance payments of death benefits within the meaning
of Section 14(j) of the LHWCA.
Section 8(d) provides for the payment of unpaid portions of scheduled permanent
partial disability awards to survivors. 33 U.S.C. § 908(d). See Sections 2(14)-(18)
for definitions of the various classes of survivors enumerated in Section 8(d)(1)(A)-(D).
Section 8(d)(3) (formerly Section 8(d)(4)) also
provides that an award for disability may be made after the death of the injured
employee; this section is not limited to permanent partial disability awards.
Former Section 8(d)(3), which provided for continuation of permanent partial disability payments
under Section 8(c)(21) where an employee receiving such an award dies from causes unrelated to his
employment, was deleted by the 1984 Amendments. This amendment is analogous to the repeal of
unrelated death benefits in Section 9 and applies to deaths occurring after enactment.
Whether an award is scheduled or unscheduled will determine who receives an award for disability
made after the death of the injured employee. Section 8(d)(3).
Section 8(d)(3) provides that, where an employee who is entitled to scheduled permanent partial
disability benefits dies without statutory survivors, the unpaid portion of the scheduled award is paid to the
Special Fund. Alabama Dry Dock & Shipbuilding
Corp. v. Director, OWCP, 804 F.2d 1558, 19 BRBS
61 (CRT) (11th Cir. 1986); Cleman & Mack (Co Executrix & Administrator
of the Estate of David Mack), 28 BRBS 104 (1994); Andrews, 17 BRBS at 212 n.4; Wilson, 16 BRBS at 27; see Hamilton v.
Ingalls Shipbuilding, Inc., 26 BRBS 114 (1992). See also, Henry v. George Hyman Const. Co., 749 F.2d
65, 73 (D.C. Cir. 1984); Eckley
v. Fibrex & Shipping Co., 21 BRBS 120 (1988) (Where an award is
entered after the death of an injured employee, his entitlement to disability benefits is determined by the
terms of the LHWCA and not by whether his claim happens to have been adjudicated at the date of
death.).
In Abercrumbia v. Chaparral Stevedores, 22 BRBS 18 (1989), aff'g on recon. 22 BRBS 18
(1988), the Board addressed the issue of entitlement to death benefits where the deceased employee had
settled his claim. In Abercrumbia,
the decedent, thus, was not physically receiving compensation on the date of
death although his entitlement to disability benefits was established. The
Board held that the phrase "was receiving compensation" actually means "is entitled to compensation," and thus his survivor could
claim benefits. Because the employee "is entitled to compensation," he has
a vested interest in it, regardless of whether the claim has been adjudicated. See Estate of Cowart v. Nichlos Drilling Co., 505 U.S. 469,
26 BRBS 49 (CRT) (1992).
Section 8(d), which directs payment to the Special Fund when there are no statutory survivors,
applies only to scheduled awards, and not to unscheduled awards made under Sections 8(c)(21) or (23).
Hamilton v. Ingalls Shipbuilding, Inc., 26 BRBS 114 (1992) (where accrued but unpaid benefits awarded
pursuant to Section 8(c)(23) are paid to a deceased claimant with no statutory survivors, the decedent's
estate, and not the Special Fund, is entitled to the permanent partial benefits).
The fact that a decedent with a scheduled permanent partial disability suffers a temporary
exacerbation prior to death resulting in total disability does not preclude the survivors from obtaining death
benefits pursuant to Section 8(d)(3), providing there is no evidence that a decedent's condition would have
improved to the point where he no longer possessed the permanent partial disability. Leech, 15 BRBS at
22. This principle evolved from the Board's holding in Acuri v. Cataneo Lines Service Co., 8 BRBS 102
(1978), that an employee need not be receiving permanent partial disability benefits at the time of death,
for purposes of Section 8(d)(3), providing he was ultimately found to have been entitled to such
compensation.
The Board has held that the underlying permanent partial disability survives solely to form the basis
of a survivor's claim under Section 8(d) and cannot support a concurrent award for the period prior to
death when temporary total disability benefits are being paid. Leech, 15 BRBS at 21-22.
In Wilson v. Vecco Concrete Construction Co., 16 BRBS 22 (1983), the Board held that a claim
filed by decedent's estate for average weekly wage adjustments and Section 8(d) benefits was not time-barred, because the estate was merely substituted for the decedent in his timely-filed claim. The Board
nevertheless denied continuing benefits under Section 8(d) because the decedent's survivors, his sisters,
were not dependent upon him as required by the LHWCA. The Board held that Section 8(d) does not
provide for payment to decedent's estate, but only to specified survivors. Decedent's estate was entitled
only to unpaid benefits accruing prior to death and thus was not entitled to permanent partial disability
compensation, as decedent had received payments for total disability before his death. The estate did
recover compensation due to an increase in average weekly wage for the period prior to death, as such
awards do not abate at death. See also Andrews
v. Alabama Dry Dock & Shipbuilding Co., 17 BRBS
209 (1985) (award for permanent total benefits accrued prior to death payable to estate).
In Henry v. George Hyman Construction Co., 15 BRBS 475 (1983), rev'd, 749 F.2d 65, 17
BRBS 39 (CRT) (D.C. Cir. 1984), the Board held that decedent's permanent partial disability (amputated
leg) survived a finding of temporary total disability which existed at the time of death. The Board,
nevertheless, found that decedent's permanent partial disability could not form the basis of a Section 8(d)
award because Section 8(d) applies only when the decedent died from causes other than the injury, and
the evidence established that decedent died from causes related to the injury; benefits were awarded under
Section 9. The D.C. Circuit reversed the Board's decision, holding that the widow is entitled to both
Section 9 death benefits and the unpaid portion of decedent's Section 8(c) scheduled permanent partial
disability award. Henry, 749 F.2d 65, 17 BRBS 39 (CRT).
On remand in Henry, the judge ordered the employer to pay to the claimant permanent partial
disability benefits, pursuant to Section 8(c)(4) and (d), for a period of 104 weeks, after which time the
Special Fund would commence payments of compensation to the claimant for the remaining weeks of
scheduled compensation. On appeal, however, the Board held that all liability for Section 8(c)(4) and (d)
rests with the Special Fund since the employer has previously paid 104 weeks of benefits as a result of the
decedent's death. Henry, 21 BRBS 329 (1988).
[ED. NOTE: Care must be taken to distinguish pre-1984 amendment case law from that now in
effect. For example, where the decedent was permanently partially disabled at the time of his death
in 1982, his settlement of his disability claim had no effect upon the survivor's benefits since the
survivor did not seek the settlement. Section 8(d)(3) benefits were awardable, if at the time of the
employee's death he retained any permanent partial disability and he was permanently partially
disabled when he died from causes other than the work related injury. Abercrumbia v. Chaparral
Stevedores, 22 BRBS 18 (1988), on remand,
22 BRBS 18.4 (1989). Since the 1984 Amendments, a claimant cannot receive compensation
for the death of an employee which is not causally related
to his work-related injury. 33 U.S.C. §§ 908(d), 909 (1984).]
In the situation where both the claimant and his spouse have died, the accrued
benefits owed to the claimant are payable to his estate pursuant to 33 U.S.C. §908(d)
as the employee has a vested interest in benefits which accrue during his lifetime,
regardless of when they were awarded. Wood v. Ingalls
Shipbuilding, Inc., 28 BRBS 27, 35 (1994), modified in part on recon., 28 BRBS 156, 158 (1994);
Clemon v. ADDSCO Industries, 28 BRBS 104, 112 (1994).
