Work-Related Fatalities in Virginia:  Who is entitled and what are they entitled too? 

The unfortunate reality is that work-related fatalities are not an infrequent occurrence in Virginia or nationwide. In 2016 there were a total of 153 fatal work-related accidents in Virginia. This total increased by 47 from 2015 and represented the highest number of fatalities since 2008. The tragic reality is that from 2005 through 2015, there were never less than 100 workplace fatalities in Virginia. One question that must be answered by family members of those fatally injured in the workplace accident and potentially other dependents who are left to pick up the pieces of workplace fatality is whether the employees family or other dependents can recover workers compensation benefits under the law in Virginia. The Virginia Workers Compensation Act applies to workplace fatalities. The law is written in such a way as to potentially up benefits up to a variety of dependents and survivors. However, this issue has become an increasingly complex area of workers compensation law and many times is not as straightforward as it may seem. In this article, I attempt to explain three aspects of workplace fatalities that fall under the Virginia Workers Compensation Act:

Who is entitled to death benefits under the Act?

What benefits are available for fatal work accidents under the Virginia Workers Compensation Act?

Are all work-related deaths covered under the Virginia Workers Compensation Act?

When a fatal workplace accident occurs, benefits for dependents of an employee whose death arises from “compensable” work accident are governed by Virginia code section 65.2-512. Benefits are only awarded if the employee's death occurs within 9 years of the accident and only if a claim for compensation has been filed within 2 years of the accident. This raises an interesting point. Workplace fatalities in Virginia may be compensable because the accident itself caused the death or because an injury occurred that ultimately caused the death. The law does not require that the death occurs at the time of the accident. A dependent who claims entitlement to death benefits (also called a“claimant”) must prove that more likely than not, there exists a causal connection from the accident to the death. It is not enough for a dependent to demonstrate that the death may have been caused equally by work and non-work related reasons. It is the claimant's burden to prove this by “preponderance of the evidence”

Who is entitled to death benefits under the Virginia Workers Compensation Act?

In order for an individual to successfully claim entitlement to benefits under the law noted above, the person must be totally or partially dependent upon the deceased worker. If a person is determined to be completely dependent on the deceased worker's earnings, that person is entitled to weekly payments in the amount of 66 percent of the employee's pre-accident average weekly wage. Whether or not a person is dependent has been broadly defined to suggest that the claimant (the person who claims dependence) relied upon the deceased employees for financial needs as a way of support and maintaining social status.
There is a difference in the amount of weekly benefit that a totally and partially dependent may receive. Claimant's who were only partially depending upon the deceased employee's earnings receive a workers compensation benefit that is reduced to the extent and in proportion to their dependency. A claimant is deemed to be partially depending when the person when the person was supported by some other means in addition to the deceased worker's wages prior to the deceased worker. The Virginia Workers Compensation Commission determines the percentage of total support cost contributed by the deceased employee and determines the amount of the award accordingly.

Sometimes it is not entirely clear who is considered a dependent under Virginia Law. Four categories of people considered presumed to be wholly dependent on a deceased worker “as a matter of law” including:

1. A wife upon a husband whom she had not voluntarily deserted or abandoned at the time of the accident or with whom she lived at the time of his accident, if she is then actually dependent upon him;

2. A husband upon a wife whom he had not voluntarily deserted at the time of the accident or with whom he lived at the time of her accident if he is then actually dependent upon her;

3. A child under the age of 18 and a child over such age if physically or mentally incapacitated from earning a livelihood or a child under the age of 23 if enrolled as a full-time student in an accredited educational institution.

Children possess a special status under Virginia law. Children are conclusively presumed to be total dependents while under the age of 18 years or over the age of 18 if the child is not able to earn wages because of a disability. To qualify as a dependent child because of disability the claimant must provide evidence that he or she was physically or mentally disabled for at least 3 months prior to the accident. In addition, Children under the age of 23 years are presumed to be total dependents only the child is enrolled as full-time students in an accredited educational institution. Children covered by the Act include biological children, stepchildren, adopted children, children born after death but conceived before death, and even “illegitimate” children who have been acknowledged by the deceased worker. Married children are not covered.

4. Parents in destitute circumstances, provided there be no total dependents under other provisions of this section. Virginia Law provides weekly compensation benefits to parents in destitute circumstances if there are no other claimants who are deemed total dependents as described above and in Virginia Code Section 65.2-512. Once again, what it means to be a parent is interpreted broadly. Parents include:

1. Natural parents
2. Stepparents
3.  Parents by adoption.

A parent is deemed to be destitute circumstances when his or her medical condition, physical or mental, prevents the parent from engaging in work of the kind that they parent was trained to do. There is no black letter bright-line rule that determines if a parent is in destitute circumstances. The Virginia Workers Compensation Commission will consider all of the factors in their totality.

Under some circumstances, an individual who is not a child, parent or spouse of the deceased worker may be entitled to compensation. In this scenario, children, spouses, and parents take priority and if any such relationship exists, other individuals will not qualify. In addition, of significance, there is no presumption of dependency for individuals who are not in these categories. Actual dependency must be demonstrated with evidence at the time of the death of the worker in order to qualify. In order to meet the evidentiary burden, a claimant in this context must show that the deceased employee contributed to the claimant's support regularly and that the claimant, in fact, relied upon the deceased worker for support.

While dependency is determined by the Commission based upon the totality of the evidence, the following must be considered:

1.  If a claimant only shows that the deceased worker only occasionally gave money to the dependent, the claimant has not met his or her burden.

2.  If no change is demonstrated by the claimant from the normal way of living, the claimant may not be able to show that he or she relied upon the deceased employee.

3.  In addition, as noted above for certain categories of dependant's actual dependency must have existed at both the time of the accident and for at least the preceding three months in order to support a finding of dependence under this section.

If there is more than one surviving dependent the death benefit is divided equally among the dependants. Total dependants take priority over partial dependents. However, if a total dependent ceases to be dependent because of death or re-marriage, partial dependants can claim compensation. If there are not total depends but there are multiple partial dependents, benefits are divided among the partial dependants based upon the extent of their dependency.

What benefits are available for fatal work accidents under the Virginia Workers Compensation Act?

As of July 1, 2015, the maximum amount that a total or partial dependant can receive per week was $975.00 per week. The minimum that a total or partial dependent can receive as of July 1, 2015, was $ 243.75. The amount of recovery is based on the statute as on the date of the accident, not at the date of death. In other words, the minimum and maximum amount can (and often do) change from week to week. A beneficiary can receive compensation for a maximum of 400 weeks from the date of the accident. Certain dependants can receive up to 500 weeks of benefits under narrow circumstances.

Virginia Law also authorizes that a maximum of $10,000 can be provided for burial expenses for the deceased employee. This amount is an addition to the wage loss compensation benefits noted above. Finally, the law authorizes reimbursement up to $1000 for expenses incurred while transporting the body of the deceased worker.

Are all work-related deaths covered under the Virginia Workers Compensation Act?

Generally speaking, if it is found that a worker died while working (that is, in the course of employment) and there is an absence of evidence as to why the employee died, it is presumed that the death arose out of the employee's employment. However, death cases are not quite as simple as it may seem. In Metcalf v. A.M. Express Moving Systems, Inc., the Court found that a trucker who was shot by an unknown person while he was asleep in his vehicle, did not benefit from the presumption. In addition, it is clear that the death presumption only applies to death cases and has not been extended to apply non-death cases that involve injured workers who were found unconscious and cannot recollect the manner in which the accident occurred.

Some cases are clear. In one case, the Virginia Court of Appeals found that fatal injuries suffered by an employee who had clearly fallen from a ladder arose out of his employment as a roofer. The medical documentation provided to the Commission and testimonial evidence established that the employee died due to head and chest injuries. There was also evidence from witness testimony to establish that the ladder was found on the ground next to the employee. This evidence was enough to prove that the employee's death arose from the employment.

However, not all cases are that clear. In one case the Virginia Court of Appeals denied a claim to a dependant based upon the death of a truck mechanic found dead at his workplace. The mechanic was found sitting in a chair and blood was found around the based of the chair. The blood was pooled up and there was no evidence of a trail of blood, of any type of accident and no indication that the employee was assaulted in any way. The deceased employee had a piece of gauze in his right hand. The autopsy report indicated that the claimant bled to death because of an “arteriovenous malformation of the left lateral leg.” The Commission denied the claim and concluded that the dependent, a widow, in this case, did not provide enough evidence to show that the cause of death was work-related. to prove that the work-related accident (the socket wound) had anything to do with his death. The Court of Appeals affirmed the decision and found that the mere fact that the deceased worker was found dead in his chair at work did not make the claim compensable.

Death related workers compensation claims in Virginia can be very complex. If you or someone you know has experienced the tragic loss of a loved one and wish to understand workers compensation entitlement, please do not hesitate to contact our office. We offer a free consultation.