(See also Topic 8.5, supra, Death Benefits for Survivors;)
9.1 APPLICATION OF SECTION 9
Section 9 of the LHWCA reads as follows:
If the injury causes death, the compensation therefore shall be
known as a death benefit and shall be payable in the amount and to
or for the benefit of the persons following:
(a) Reasonable funeral expenses not exceeding $3,000,
(b) If there be a widow or widower and no child of the deceased to
such widow or widower 50 per centum of the average wages of the
deceased, during widowhood, or dependent widowerhood, with two
years' compensation in one sum upon remarriage; and if there be
a surviving child or children of the deceased, the additional amount
of 16 2/3 per centum of such wages for each child; in the case of the
death or remarriage of such widow or widower, if there be one
surviving child of the deceased employee, such child shall have his
compensation increased to 50 per centum of such wages, and if
there be more than one surviving child of the deceased employee,
to such children, in equal parts, 50 per centum of such wages
increased by 16 2/3 per centum of such wages for each child in
excess of one: Provided, That the total amount payable shall in no
case exceed 66 2/3 per centum of such wages. The deputy
commissioner having jurisdiction over the claim may, in his
discretion, require the appointment of a guardian for the purpose
of receiving the compensation of a minor child. In the absence of
such a requirement the appointment of a guardian for such
purposes shall not be necessary.
(c) If there be one surviving child of the deceased, but no widow or
widower, then for the support of such child 50 per centum of the
wages of the deceased; and if there be more than one surviving
child of the deceased but no widow or dependent husband then for
the support of such children, in equal parts 50 per centum of such
wages increased by 16 2/3 per centum of such wages for each child
in excess of one: Provided, That the total amount payable shall in
no case exceed 66 2/3 per centum of such wages.
(d) If there be no surviving wife or husband or child, or if the
amount payable to a surviving wife or husband and to children shall
be less in the aggregate than 66 2/3 per centum of the average
wages of the deceased; then for the support of grandchildren or
brothers and sisters, if dependent upon the deceased at the time of
the injury, and any other persons who satisfy the definition of the
term "dependent" in section 152 of title 26 of the United States
Code, but are not otherwise eligible under this section, 20 per
centum of such wages for the support of each such person during
such dependency and for the support of each parent or
grandparent, of the deceased if dependent upon him at the time of
the injury, 25 per centum of such wages during such dependency.
But in no case shall the aggregate amount payable under this
subdivision exceed the difference between 66 2/3 per centum of
such wages and the amount payable as hereinbefore provided to
widow or widower and for the support of surviving child or children.
(e) In computing death benefits, the average weekly wages of the
deceased shall not be less than the national average weekly wage
as prescribed in section 6(b), but--
(1) the total weekly benefits shall not exceed the lesser of
the average weekly wages of the deceased or the benefit which the
deceased employee would have been eligible to receive under
section 6(b)(1); and
(2) in the case of a claim based on death due to an
occupational disease for which the time of injury (as determined
under section 10(i) occurs after the employee has retired, the total
weekly benefits shall not exceed one fifty-second part of the
employee's average annual earnings during the 52-week period
preceding retirement.
(f) All questions of dependency shall be determined as of the time
of the injury.
(g) Aliens: Compensation under this chapter to aliens not
residents (or about to become nonresidents) of the United States or
Canada shall be the same in amount as provided for residents,
except that dependents in any foreign country shall be limited to
surviving wife and child or children, or if there be no surviving wife
or child or children, to surviving father or mother whom the
employee has supported, either wholly or in part, for the period of
one year prior to the date of the injury, and except that the
Secretary may, at his option or upon the application of the
insurance carrier shall, commute all future installments of
compensation to be paid to such aliens by paying or causing to be
paid to them one-half of the commuted amount of such future
installments of compensation as determined by the Secretary.
33 U.S.C. § 909.
[ED. NOTE: The Underlying claims of the worker, who subsequently dies, and the worker's
survivors, are separate claims. See Topics 8.5 (Death Benefits for Survivors) and 8.10
(Settlements).]
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.).
Like other sections of the LHWCA, Section 9 has been modified by each of the recent amending
acts. As cases may still be heard that involve post-1972 amendment law (and pre-1984 amendment law),
some recent jurisdiction will be presented concerning that version of the law. Only the 1984 LHWCA will
be cited when discussing the provisions now employed for granting death benefits under Section 9.
The 1984 Amendments only apply to deaths occurring after their date of enactment--September
28, 1984. Taddeo v. Bethlehem Steel Corp., 22 BRBS 52 (1989) (decedent developed cancer due to
exposure to asbestos while at work and died in 1965; claimant filed a claim for death benefits in 1982;
Board applied the 1972 Amendments to claim).
Perhaps the most significant change made to Section 9 by the 1984 Amendments involved the
circumstances under which death benefits are available. Specifically, the 1984 Amendments modified
Section 9 so that death benefits are now only payable when the employee dies as the result of a work place
injury. This restriction changed the 1972 amendment law which provided a new cause of action: death
benefits to survivors when the decedent was permanently totally disabled and died of an unrelated cause.
The 1984 Amendments repealed this provision and returned the law to its pre-1972 state.
The enactment and subsequent application of Section 9 (as amended in 1984) does not violate a
claimant's due process rights since there was not any vested right to death benefits as of the date of
enactment of Section 9 as amended in 1984. Close v. International Terminal Operations, 26 BRBS 21
(1992).
Section 9 death benefits must be distinguished from Section 8 disability benefits, which provide for
a separate cause of action. Henry v. George Hyman Constr. Co., 749 F.2d 65, 73 (D.C. Cir. 1984)
("The case law clearly establishes two separate causes of action, one for disability lying with the disabled
employee, and one for death lying with specified survivors of the decedent."). Henry also stated that an
award for permanent partial disability may be made following an employee's death, which may be received
concurrently with an award under Section 9.
In Puig v. Standard Dredging Corp., 599 F.2d 467, 469 (1st Cir. 1979),
the court stated that "[c]ases under the Act have consistently held that the
right to death benefits is separate and distinct from any right to disability
benefits, and that this separate right does not arise until death occurs." See State Ins.
Fund v. Pesce, 548 F.2d 1112, 1114 (2d Cir. 1977); Ponder v. Peter Kiewit Sons' Co.,
24 BRBS 46, 53 (1990) ("in a claim for death benefits, the time of injury cannot be prior to the employee's date of
death"); Lynch v. Washington Metro. Area Transit Auth., 22 BRBS 351, 354 (1989).
Settlement of Death Benefit Claims
[ED. NOTE: The settlement of a worker/claimant is not binding on a claim for death benefits made
by a survivor. For a discussion of a claim made for death benefits for survivors, see Topic 8.5
Death Benefits for Survivors. For a discussion of the settlement of death benefit claims see Topic
8.10 Settlements, supra. For a discussion of third-party settlements made by both the worker and
spouse who later becomes a widow/widower, see Topics
33.6 Employer Credit for Net Recovery by "Person Entitled to Compensation" and
33.7 Ensuring Employer's Rights-Written Approval of Settlement.]
Extension Acts Applicability
The death benefits provisions provided for in the LHWCA also apply to the
extension acts. The District of Columbia Workmen's Compensation Act (DCW Act)
of 1928, however, was repealed in 1979
by the D.C. Council and replaced with the District's own workers' compensation
law. Notwithstanding its repeal, the 1928 Act remained in force for the purpose
of preserving the provisions of the LHWCA as
they existed in 1982 (the effective date for the 1979 Act), for employees who
were injured prior to the effective date of the 1979 Act. Under that scheme, "a death benefits claim derive[d] from the worker's
employment related injury." Thus, for a worker who was injured prior to the
effective date of the 1979 Act, a death benefits claim related to that injury
would be covered by the LHWCA. Shea v. Director,
OWCP, 929 F.2d 736, 739-40 (D.C. Cir. 1991). See also the discussion of the DCW Act under the
Extensions to the LHWCA, infra.
9.1.1 Responsible Employer/Carrier
The 1984 Amendments, as noted above, only apply to causes of action, i.e., deaths. Because the
injury that causes the death is considered the triggering event, the employer that employs the decedent, or
the carrier that provides coverage for the injury, at the time of the injury leading to the employee's death,
will be held liable for payment of the death benefits to the survivors. The reasoning for this finding is taken
from the litigation involving the constitutionality of the 1972 Amendments.
Prior to 1984, significant litigation took place involving the 1972 amendment law (which allowed
for death benefits where the employee was permanently totally disabled and dies as the result of a non-related cause). In this instance, the survivors of an employee injured prior to 1972, who was later rendered
permanently totally disabled and who died after 1972 but prior to 1984, would qualify for death benefits.
An issue arose in two types of cases: where the carrier no longer covered the employer at the time of the
unrelated death and where the employer/carrier was held liable for death benefits when the employee was
injured prior to 1972.
The constitutionality of the 1972 Amendments survived attack on numerous occasions. The
specific issue involving Section 9 concerned the creation of the new cause of action described above, i.e.,
survivors being permitted to bring a death benefits claim when the permanently totally disabled employee
died from causes unrelated to the work injury. In holding that the 1972 Amendments were constitutional,
the Fifth Circuit rationalized that the decedent must have
suffered a work-related injury rendering him permanently totally disabled. "Therefore,
the death benefit scheme of [Section 9] is clearly in furtherance of the purpose
of the [LHWCA] and is both maritime in nature and a proper subject for Congressional
legislation." Travelers Ins. Co. v. Marshall, 634 F.2d 843, 845 (5th Cir. 1981) (citation omitted).
The court did not believe that the origin of the right to death benefits was based solely on the event
of a death. Rather, the true source of the benefits was in the injury itself, i.e., since the employee must have
either died as a direct result of the injury, or must have been rendered permanently totally disabled from
the injury. Id. at 846 (citing Pennsylvania Nat'l Mut. Casualty Ins. Co. v. Spence, 591 F.2d 985, 987 (4th
Cir.), cert. denied, 444 U.S. 963 (1979).
This rationale became significant, as suggested above, in the situation where an employee was
injured pre-1972 and dies post-1972 of unrelated causes, and the insurance carrier who covered the injury
no longer provided coverage at the time of death. Liability attached at the time of injury for all subsequent
claims, including death benefits which, under pre-1972 law, would not be available. The Fifth Circuit held
that this application would not deny the insurance carriers due process of the law. Id.
at 847. In so ruling, the court viewed Section 9's death benefits provisions "as
providing for deferred compensation attributable to the suffering accompanying
the necessary precondition of a permanently totally disabling maritime injury."
Id. at 848 (analogizing Section
9 of the LHWCA to the comparable provision of the Black Lung Benefits Act of
1972, 30 U.S.C. §§ 901-945 (1976); citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1
(1976), in support of its holding that the Due Process Clause was not violated).
See also Spence,
591 F.2d at 987 ("Neither right of action, whether for compensation payments
or for death benefits, exists apart from the critical fact of injury; each is dependent for its basis on the injury.
It is inaccurate, therefore, to state that the right to the death benefits has its origins solely in the event of
death; the real source of the liability for such benefits under the Act traces directly back to the injury itself." The
court held the carrier liable because it assumed the obligation for potential
death benefits when it issued its compensation insurance policy.).
See also Nacirema Operating Co. v. Lynn, 577 F.2d 852, 854 (3d Cir. 1978), cert. denied, 439
U.S. 1069 (1979) ("We find that the amendment is reasonably related to the permissible goal of
indemnifying survivors of injured maritime workers. This conclusion also supports our finding that Congress
had the authority to provide the benefits under its maritime power."); Pesce, 548 F.2d at 1112.
The First Circuit ruled in a similar fashion as the Fifth Circuit above, although it did not rely on
analogies to other statutes. Puig, 599 F.2d at 467 (this case fell under the Defense Base Act, a LHWCA
extension act.) The First Circuit also asserted that, by
holding the employer/carrier liable for a post-1972 death which was unrelated
to the pre-1972 work injury, the statute was not being retroactively applied. "Rather,
because the right to death benefits under the Act arises only upon death, and
is separate from the right to disability benefits which arises when the employment
injury occurs, application of the 1972 [Section
9] amendment in a case where ... death occurred after the amendment's effective
date is a prospective application." Id. at 470.
The Ninth Circuit also ruled in favor of the constitutionality of the 1972 Amendments. Todd
Shipyards Corp. v. Witthuhn, 596 F.2d 899 (9th Cir. 1979). The court noted that nothing in the 1972
Amendments, nor legislative history, stated that death benefits in the case of a totally disabling injury shall
not be effective when the injury occurred prior to the Amendments and the death after the Amendments.
Id. at 901. The Ninth Circuit concluded
that the 1972 Amendments did not retroactively affect the employer/carrier's
vested rights. Upon the decedent's death, a new right of action became vested
in the
decedent's survivors. "It could not be known, until the death occurred, whether there would be any eligible
survivor(s) or, if so, who those survivor(s) would be. Thus, amended [Section 9] operates prospectively
when applied" to these types of cases. Id. at 902. Finally, the Ninth Circuit could
not "say that the
Congressional scheme lacks a rational basis in that it is 'wholly unreasonable
in providing benefits for those who were most likely to have shared the miner's
suffering.'" Id. at 903 (quoting Usery, 428 U.S. at 25-26).
The Fourth Circuit has reasoned in a similar fashion regarding the lack of any due process
violation and the rational basis of Congress' actions. Norfolk,
Baltimore & Carolina Lines v. Director,
OWCP, 539 F.2d 378 (4th Cir. 1976), cert. denied, 429 U.S. 1078
(1977). One additional argument was addressed and dismissed in this case, that
being any violation of the Contracts Clause of the U.S.
Constitution. Specifically, the court ruled that "[t]he amendment cannot be
voided on the ground that it constituted an impairment of contracts [i.e.,
a contract entered into between the employer and the carrier
prior to 1972 to cover injuries], for the constitutional bar to such impairment
is directed only to the States."
Id. at 382.
Employer/Carrier or Trust Fund Responsibility
The circuit courts have disagreed on whether the employer/carrier or the Special Fund should have
been responsible for the increased death benefits when the employee was injured pre-1972, but died post-1972. As the D.C. Circuit noted in Henry,
749 F.2d at 65, "[i]n all of these cases, employers or insurance
companies argued that the injury triggered the application of the [LHWCA] and, therefore, that the pre-1972 benefits formula should apply." The court went on to state that "[i]n
every case, however, courts and the Board reasoned that, since death and disability
were two separate causes of action, death occurring
after the effective date of the 1972 amendments would trigger the more generous
benefits available under those amendments, notwithstanding the fact that the
injury which caused the death occurred prior to 1972."
Id. at 73-74 (emphasis in original).
See Director, OWCP v. Bath Iron Works Corp., 885 F.2d 983, 988 (1st Cir. 1989), cert.
denied, 494 U.S. 1091
(1990) ("In the case of a worker injured before 1972 who dies after 1972 ... [the
enacting Act] does not pay for a 'gap' adjustment from the 'government/special fund' sources, because no
'gap' exists in such a case. Death benefits in cases of pre-1972 injury, post-1972 death are calculated for
the first time at the time of death. And, that calculation provides the survivors with benefits at the generous,
post-1972 rates."); Puig, 599 F.2d at 469; St.
Louis Shipbuilding & Steel Co. v. Casteel, 583 F.2d 876,
877-78 (8th Cir. 1978); Pesce, 548 F.2d at 1114; Rouse
v. Norfolk, Baltimore & Carolina Lines, 2
BRBS 11, 13-14 (1975), aff'd on other grounds sub nom. Norfolk,
Baltimore & Carolina Lines v.
Director, OWCP, 539 F.2d 378 (4th Cir.), cert. denied, 429 U.S. 1078 (1976).
The Sixth Circuit, however, came to the opposite conclusion. In Director, OWCP v. Detroit
Harbor Terminals, 850 F.2d 283 (6th Cir. 1988), the
court interpreted Section 10(h)(1) to mean, "when
a party was injured pre-amendment and died from that injury post-amendment, one could say that the death
had commenced prior to the amendment date. Since the decedent's disability benefits were adjusted after
the amendments, and those disability benefits were converted into death benefits, '[t]here is little difference
in the adjustment process, other than one of nomenclature." As such, the court
held that the Special Fund was responsible for the increased payments. Id. at 288.
9.1.2 Section 20(a) Presumption
[ED. NOTE: See Topic 20 for a complete discussion of Section 20, infra).]
Section 20(a) of the LHWCA presumes, in the absence of substantial evidence to the contrary, that
the claim for death benefits comes within the provisions of the LHWCA, i.e., that the death was work-related. Sprague v. Director, OWCP, 688 F.2d 862 (1st Cir. 1982). See also Woodside v. Bethlehem
Steel Corp., 14 BRBS 601 (1982) ("It is well-established that, if an injury aggravates, exacerbates,
accelerates, contributes to , or combines with a previous infirmity, disease, or underlying condition, the
resultant condition is compensable....This rule is consistent with the maxim that 'to hasten death is to cause
it.'"); Fineman v. Newport News Shipbuilding & Dry
Dock Co., 27 BRBS 104 (1993) (length of hastening
is not significant).
The Section 20(a) presumption is not available to aid a claimant in establishing his status as a
beneficiary. Meister v. Ranch Restaurant, 8 BRBS 185 (1978), aff'd mem., 600 F.2d 280 (D.C. Cir.
1979).
9.2FUNERAL EXPENSES
The 1984 Amendments to Section 9(a) of the LHWCA provide for funeral expenses not to exceed
$3,000.00. This subsection contemplates that payment is to be made to the person or business providing
funeral services or as reimbursement for payment for such services, and payment is limited to the actual
expenses incurred up to $3,000.00. Payment of funeral expenses is not considered payment of
compensation for purposes of Section 33(g). Kahny v. Arrow Contractors, 15 BRBS 212, 223 (1982),
aff'd mem. sub nom. Kahny v. OWCP, 729 F.2d 777 (5th Cir. 1984). Only an employer/carrier may be
held liable for payment of funeral expenses, and not the Special Fund. Bingham v. General Dynamics
Corp., 20 BRBS 198, 205 (1988).
9.3 SURVIVORS
Section 9(f) provides that all questions of dependency are determined as of the time of injury. This
should be kept in mind as the subsections under this section are considered.
9.3.1 Spouse and Child
The Fifth Circuit has held that state law is dispositive
of the question regarding whether a claimant meets the LHWCA's requirement
of being a "wife." Ryan-Walsh Stevedoring Co. v. Trainer, 601 F.2d
1306, 1313 (5th Cir. 1979). State law is relied upon because
the LHWCA does not define "widow" or
"widower" and no federal common law of marriage or domestic relations exists. Id. at 1314. The court
warned that the conjugal nexus test, set forth by the Supreme Court in Thompson v. Lawson, 347 U.S. 334,
336-37 (1954), should not be interpreted "as authorizing the creation of a federal common law of
marriage to determine whether the claimant, in the first instance, was married to the deceased employee." Rather,
this test was fashioned for the situation where the widow was not living with
the decedent at the time of death by reason of his desertion. Id. at 1315.
The Board has held that Section 2(16)'s definition of "widow or widower" should be read in the
disjunctive: "a widow or widower is a wife or husband who, at the time of
the employee's death, is living with the employee, or is dependent for support
upon the employee, or is living apart from the employee
for justifiable cause, or is living apart by reason of desertion." Griffin v. Bath Iron Works Corp., 25 BRBS
26, 28 (1991) (emphasis in original). Thus, Section 2(16) has been interpreted as affording alternative
bases for recovery. Id. at 29. Therefore, if the spouse was married to the decedent at the time of his
death, dependency need not be established, including for the time of his initial injury, to qualify for death
benefits. Id.
In Angelle v. Steen Production Service, Inc., 34 BRBS 157 (2000), the Board found that the ALJ
properly rejected a claimant's allegation that she was the decedent worker's widow. The Board noted the
the ALJ properly chose to apply Louisiana domestic relations law to determine her status and that his
application of the state law was correct.
It should be noted that a literal reading of Section 9(b) would apparently require a widower, unlike
a widow or surviving child, to show dependency. The Board instructed, however, that the inquiry must
focus on the relationship between the claimant and decedent, see Leete v. Director, OWCP, 790 F.2d 418
(5th Cir. 1986), "and, in particular, whether there was a
'conscious choice [by the claimant] to terminate her prior conjugal relationship.'" Kennedy v. Container Stevedoring Co., 23 BRBS 33, 36 (1989) (quoting
Thompson v. Lawson, 347 U.S. 334 (1954)) (emphasis in original).
The Board noted that the decedent's behavior is not dispositive of the issue,
but rather, claimant's conduct must be scrutinized, i.e., whether claimant "intended
to sever the marital bond or ... [make] a conscious choice to end her marital
relationship with decedent." Id.
at 37. In holding that each case should be decided on its merits, the Board
stated that "[j]ustifiable cause for living apart is not limited to only
temporary separations or situations in which a spouse is fearful of an infectious
disease or bodily injury...."
Id. See also Lynch, 22 BRBS at 355.
The Fifth Circuit has held that the "conjugal nexus test" must be applied in assessing whether a
claimant is the "deserted" spouse of the decedent. Leete, 790 F.2d at 421 (quoting Thompson, 347 U.S.
at 336-37). The Fifth Circuit stated "that the determination
of whether a conjugal nexus exists is not to be reached by 'assessing the marital
conduct of the parties.'" Id. (quoting Thompson, 347 U.S. at
336). The court suggested that, in some cases, post-death conduct near the
time of death "might be relevant to
assessing the strength of the conjugal nexus between a [claimant] and a decedent...." Id. The relevant issue
is whether the claimant is a deserted spouse at the time of decedent's death. See also Hicks v. Southern
Ill. Univ., 19 BRBS 222, 227 (1987).
A death claim is analogous to a survival action. If a claimant dies prior to the date his claim for
death benefits is adjudicated, the claimant's right to such benefits survives the claimant's death. Hickman
v. Universal Maritime Serv. Corp., 22 BRBS 212, 216-17 (1989) ("There is no plausible reason to
extinguish claimant's entitlement to benefits based upon the delay inherent in the administrative adjudicative
process which precluded resolution of her claim until after her death.").
Part of the Board's rationale was that debts accrue while waiting for an award
to be issued and, often, the compensation awarded is used
to satisfy the debts incurred while waiting for resolution through the adjudicative
process.
In interpreting the definition of "child" under the LHWCA, the Fifth Circuit asserted
that term "must be liberally construed in favor of coverage and in a way which
avoids harsh and incongruous results."
Trainer, 601 F.2d at 1317-18
(quotation omitted) (even though "child's" grandmother failed to qualify as
deceased's dependent because of state domestic relations law, "child" was eligible
for death benefits because she lived with her grandmother and decedent, and was
reliant on decedent for support). See also
Shea, 410 F.2d at 56.
According to Section 2(14) of the LHWCA, a "child" may include an "acknowledged illegitimate
child dependent upon the deceased." The Fifth Circuit has
held that "[a]pplication of rigorous state law
schemes for proof of paternity, designed to serve various state interests such
as the orderly devolution of property, especially immovable [i.e., real] property,
is inconsistent with the history and tradition of liberal
administration of benefits under the [LHWCA]." St. John Stevedoring Co. v. Wilfred, 818 F.2d 397, 399
(5th Cir.), cert. denied, 484 U.S. 976 (1987) (citing Voris v. Eikel, 346 U.S. 328 (1953)). Therefore,
even though state law would prevent a designation of paternity, if a paternal link can be proven in the
proceedings under the LHWCA, death benefits under the LHWCA will not be precluded. Id. (the facts
of that case supported a finding of acknowledgment).
The Board has stated that "[w]hile it is unconstitutional to discriminate
on the basis of a child's legitimacy, Weber
v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972),
the LHWCA does not discriminate in an impermissible fashion because it permits
illegitimate children to recover if acknowledged
and dependent." Hicks, 19 BRBS at 225-26 (this case fell under the Defense Base Act).
The Fifth Circuit has held that "a child 'en ventre sa mese' (in
its mother's womb) will be considered a dependent of a covered employee if,
at the time of the accident, the mother of the child was
dependent on the employee." Wilfred, 818 F.2d at 399 (citing Shea,
410 F.2d at 56). In deciding a mother's dependency, "total" dependency need
not be proven. Rather, the Fifth Circuit concluded that "partial" dependency
would be sufficient. Id. (citing Texas Employers Ins. Ass'n v. Sheppeard, 62 F.2d
122 (5th Cir. 1932)).
A parent may not settle in advance a dependent's death benefits claim where that dependent's
interests were not protected under state law. Wilfred, 818 F.2d at 400.
9.3.2 Amount of Compensation Payable
Under Section 9(b) of the LHWCA, when a widow or widower survives the decedent with no
children, that spouse shall receive 50 percent of the decedent's average weekly wage until death or
remarriage. If children survive in addition to the widow or widower, an additional 16 2/3 percent of the
average weekly wage shall be added per child. However, although this may have been an oversight by
Congress when it amended Section 9 over the years, be aware that the total compensation shall not exceed
66 2/3 percent of the decedent's average weekly wage. Thus, regardless of whether one or more than one,
child survives together with a widow or widower, only 16 2/3 percent of the average weekly wage will be
added to the spouse's 50 percent.
There is a family unit exception to this rule wherein the employer's overall liability under both
state and federal statutes may exceed the 66 2/3 percent maximum imposed by Section 9(b). In Ferguson
v. Southern States Cooperative, 27 BRBS 17 (1993) where one of the decedent's three children was from
a prior marriage and entitled to large death benefits under state law, the employer was not entitled to offset
its state liability to that child against its liability to the other claimants under the LHWCA. In Ferguson, the
Board noted that the Supreme Court explicitly recognized in Sun Ship, Inc. v. Commonwealth of
Pennsylvania, 447 U.S. 715 at 724 (1980), 12 BRBS 890 at 894, that concurrent jurisdiction could result
in more favorable awards under a state act than under the LHWCA.
Section 3(e) provides a credit for "amounts paid to an employee." As the Ninth Circuit discussed
in Lustig v. U.S. Dept. of Labor, 881 F.2d 593, 595, 22 BRBS 159, 161 (CRT) (9th Cir. 1989),
this language is distinct from the words "any amounts paid by an employer," rejected
by Congress in enacting Section 3(e). Thus, the Board reasoned, it is appropriate
for the judge to look to the amount paid to each
claimant and credit the amount due each under state law. 27 BRBS at 23.
9.3.3 Death or Remarriage of Surviving Spouse
If the widow or widower remarries, she or he shall receive two years' compensation in a lump sum.
If one child survives in addition to that widow or widower, the child shall receive 50 percent of the
decedent's average weekly wage. If more than one child survives in addition to that widow or widower,
16 2/3 percent shall be added to the 50 percent discussed above. Again, a cap of 66 2/3 percent of the
average weekly wages has been placed on the total compensation payable for death benefits. Note that
the increase in compensation for the children also occurs when the widow or widower dies.
The Eleventh Circuit has held that, where a surviving spouse remarries, the surviving children are
entitled to an immediate increase in compensation benefits under Section 9(b) of the LHWCA. American
Mut. Liab. Ins. Co. v. Smith, 766 F.2d 1513, 1519 (11th Cir. 1985)
("We conclude that the plain
language of [Section 9] and its legislative history demonstrate that the increase of the children's benefits is
not to be delayed for a two year period following the remarriage of a surviving spouse.").
Thus, upon remarriage, the surviving spouse receives a lump sum payment equivalent
to two years' compensation and
the surviving children receive an immediate increase in their benefits.
9.3.4 Section 9(b) in Conjunction With Section 9(e)
The Board has held that Section 9(b) must be read in conjunction with Section 9(e) of the
LHWCA, which provides minimum benefits. See Dunn v. Equitable Equip. Co., 8 BRBS 18 (1978);
Lombardo v. Moore-McCormack Lines, 6 BRBS 361 (1977); Gray v. Ferrary Marine Repairs, 5 BRBS
532 (1977).
9.3.5 Surviving Children/No Surviving Spouse
Pursuant to Section 9(c), if one child survives and no surviving spouse exists, the child shall receive
50 percent of the decedent's average weekly wage. If more than one child survives with no surviving
spouse, an additional 16 2/3 percent will be added to the above 50 percent, to be divided equally among
the surviving children.
When an employer is entitled to credit for overpayment to one child (i.e. child had reached 23rd
birthday), employer may apply credit against future compensation owed to another sibling (who is still a
minor). Brad Valdez and Joshua Valdez
(Children of Manuel Valdez, Jr.) V. Crosby & Overton, 34
BRBS 69 (2001). In Valdez, the Board reasoned that because Section 9(b) allows for payment of one
death benefit to a spouse including additional compensation for surviving children, the compensation owed
to one sibling was subsequent compensation due under the same award as that paid to the other sibling.
9.3.6 Payments to Other Dependents
Under Section 9(d) of the LHWCA, if no widow, widower, or children survive, or where the
aggregate of the payments to those survivors is less than 66 2/3 percent of the decedent's average weekly
wage, support may be provided for the decedent's grandchildren and siblings. This support, however,
may only be granted where the grandchildren and siblings were dependent on the deceased at the time
of injury, and such compensation is limited to the period of dependency.
Additionally, compensation may be granted to others meeting the definition
of "dependent" (see 26 U.S.C. § 152),
but not otherwise included under Section 9 of the LHWCA. In the cases of dependents
discussed in this paragraph,
compensation shall be in the amount of 20 percent of the decedent's average
weekly wage.
If no widow, widower, or children survive the decedent, or where the aggregate of the
compensation payable to those survivors does not exceed 66 2/3 of the deceased's average weekly wage,
support may be granted to the parents and grandparents of the decedent. As above, this support may
be provided only if the parents or grandparents were dependent on the decedent at the time of injury. The
amount of compensation for these survivors shall be in the amount of 25 percent of the deceased's average
weekly wage.
In no case shall the aggregate amount payable pursuant to this subsection exceed the difference
between 66 2/3 percent of the decedent's average weekly wages and the amounts payable under Sections
9(b) and (c). See Topics 9.3.2, 9.3.3 and 9.3.5, supra.
As noted, the LHWCA provides that if there be no surviving spouse or child,
death benefits may be granted to a "dependent" of the decedent at the time
of death, who is not otherwise eligible under Section 9, as that term is defined
by Section 152 of title 26 of the Tax Code. Angelle v. Steen Production
Services, Inc., 34 BRBS 157 (2000). In Angelle, the Board made several inter-related holdings as
regards Section 152 of the Tax Code. First, it held that a decedent's taxable year for purposes of a
dependency determination under Section 9(d) is the period from January 1st until the date of his death that
year. Second, the Board held that a claimant's testimony regarding the decedent's level of financial support
constitutes record evidence of the decedent's support and there is no requirement under the LHWCA nor
Section 152 of the Tax Code that the claimant further substantiate her testimony with documentation (so
long as the testimony does not lack credibility). Third,
the Board interpreted Section 152(a)(90 to not require that the decedent's "household" include
everyone living under one roof. (In Angelle, the claimant
and the decedent rented a separated room and bath from the claimant's mother, in the home of claimant's
mother and they had their own phone and cable television service. The Board likened this as tantamount
to a couple living in a third person's house as boarders.) Fourth, the Board found that it did not matter that
a decedent never actually claimed a claimant as a dependent in his tax returns since Section 152 speaks
in terms of whether the decedent was entitled to claim a claimant, not whether he actually does so.
9.3.7 No Survivors or Dependents
According to Section 44(c)(1) of the LHWCA, if no survivors exist, and death benefits would
otherwise be appropriate, i.e., the employee died as the result of a work place injury, the employer/carrier
shall pay $5,000.00 to the Special Fund.
9.3.8 Compensation to Aliens
Section 9(g) provides that compensation may be payable to aliens who are not residents of the
United States or Canada. In that case, compensation shall be in the same amount as residents, except that
dependents in any foreign country shall be limited to
the surviving spouse and children, or if no surviving spouse or children,
then to surviving parents whom the employee supported, at least in part,
for one year
prior to the date of injury. Note that the LHWCA actually states "wife" instead of "spouse," although
this was probably an oversight by Congress when it amended the LHWCA, i.e.,
limiting dependency to a wife
and not a husband would probably violate the Equal Protection Clause of the
Constitution.
In Logara v. Jackson Engineering Co., ___ BRBS ___ (2001), the Board held that a treaty of
friendship between Greece and the United States does not act to prevent commutation of benefits
to a citizen of Greece under provisions of Section 9(g). Additionally, in Logara, the Board specifically
found that Section 9(g) was constitutional.
9.4 MAXIMUM/MINIMUM BENEFIT
9.4.1 Decedent's Average Weekly Wage
The 1984 Amendments completely modified Section 9(e) of the LHWCA. Under this section, the
decedent's average weekly wage shall not be less than the national average weekly wage (see Section
6(b)). The total weekly benefits shall not, however, exceed the lesser of the decedent's average weekly
wage or the benefit which the decedent would have been eligible for under Section 6(b) (1).
The Supreme Court held that, under the 1972 Amendments to the LHWCA, death benefits were
not subject to the maximum limits expressly placed on disability payments by Section 6(b)(1). The Court noted
that the total weekly death benefits payable to survivors were not modified
by the 1972 Amendments, i.e., they remained at a maximum of 66 2/3 percent
of the deceased's average weekly wage. "The 1972 Amendments deleted the specific
dollar minimum and maximum limitations on average weekly wages and substituted
in their place a provision dealing only with a minimum limitation, which was
tied to
the applicable national average weekly wage." Director, OWCP v. Rasmussen, 440 U.S. 29, 33-34
(1979).
In discussing Section 9(e), the Court stated that "Congress replaced specific
minimum and maximum limitations on average weekly wages, and hence on death
benefits, with a minimum limitation
governed by the applicable national average weekly wage. That the omission
of a maximum limitation on death benefits was inadvertent is disproved by the
legislative history of the 1972 Amendments." Id.
at 37. The Court concluded that Section 6(d) "does not render the maximum limitations
contained in [Section 6(b)(1)] applicable to death benefits." Id.
9.4.2 Death Due to Occupational Disease
According to Section 9(e)(2), as modified by the 1984 Amendments, in case of death due to an
occupational disease for which the time of injury occurs after retirement (see Section 10(i)), the total
weekly benefits shall not exceed 1/52 of the employee's average annual earnings for the 52-week period
preceding retirement. Ponder, 24 BRBS at 53. Where Section 9(e)(2) applies and the weekly death
benefits calculated under Section 9(b) exceed 1/52 of the employee's annual earnings, the benefits will be
modified so that they will not exceed the latter amount. Id.
Pursuant to Section 9(e), as amended in 1984, "which establishes a minimum and maximum benefit
level in computing death benefits, the average weekly wage of the deceased shall not be less than the
national average weekly wage, and the total benefits awarded may not exceed the lesser of the actual
average weekly wage of decedent or the maximum benefit which an employee is eligible to receive under
33 U.S.C. § 906(b)(1).... Section 6(b)(1) also imposes a cap on both disability
and death benefits equivalent to 200 percent of the national average weekly
wage." Buck v. General Dynamics Corp. Elec.
Boat Div., 22 BRBS 111, 114 (1989).
The Board refused to accept the argument "that the date of death should be
considered as a separate date of injury for the purpose of computing an award
of survivor's benefits. Section 10 ...
specifically ties the calculation of death benefits to the lesser of the average
weekly wage of the deceased as defined by Section 10 or the national average
wage without mention of intervening cost-of-living
adjustments." Id. The average weekly wage should be based on the date of injury. Id.
In Donovan v. Newport News Shipbuilding & Dry
Dock Co., 31 BRBS 2 (1997), the Board
examined the meaning of "shall not exceed" in Section 9(e)(1). The Board held
that the phrase is applicable only to the initial calculation of the base rate
at which death benefits are payable, and does not
act as a ceiling on the rate at which death benefits can be paid to a surviving
spouse.
