What happens if an employee dies during the pendency of the open and ongoing workers’ compensation claim? The answer to this depends on a few factors.

Maura Burk

The first consideration is when the petitioner died (during treatment/ before permanency exams, after permanency exams or after an order approving settlement for permanency has been entered). The second consideration is whether the cause of death is, or is not, work-related.

Below are various potential situations regarding dependency/ death cases and how we would recommend handling each scenario.

Scenario 1: Petitioner dies from a cause not related to his workers’ compensation injury while he is under authorized treatment. Permanency exams have not yet occurred on either side. Who gets paid benefits, and what type of benefits are owed?

It is our general position in this scenario that all that is owed is a contribution to funeral expenses as set forth in NJSA 34:15-12(e) (up to $5,000). In almost all cases like this, it is difficult for a petitioner to prove permanency without permanency examinations.

There are exceptions, of course. In certain circumstances (such as a case involving a truly catastrophic accident), permanency could possibly be assessed without permanency exams, but these circumstances are quite rare. In most cases, permanency cannot be assessed without permanency exams where the employee is examined and provides his current complaints.

Since permanency benefits are based on current complaints as provided to permanency experts and testimony or a settlement affidavit, it is difficult to assess permanency without permanency exams on both sides having occurred and without current complaints given to permanency experts. Generally, permanency cannot be attributed in a case where petitioner was under ongoing authorized treatment when he died.

We generally maintain that an employee is not entitled to permanency if he was still in treatment and had not medically plateaued, since he cannot sustain his burden of proof that he sustained permanency from the work accident.

Case study/ example 

Logan is treating for a work-related tendinopathy condition. Treatment is progressing with physical therapy. Logan dies from a non-work-related motor vehicle accident halfway through physical therapy. Does the employer owe permanency? No, because there is no way to prove permanency. Who could say that Logan would have had permanency when treatment was not even finished?

Scenario 2: Petitioner died from a cause not related to his workers’ compensation injury after permanency exams have occurred. Who gets paid benefits, and what type of benefits?

The difference between Scenario 1 and Scenario 2 is that in this scenario, permanency can be reasonably assessed and negotiated, based on the permanency exams that have occurred on both sides and the expert reports. Therefore, in this case, permanency can be assessed and negotiated between the parties.

Pursuant to NJSA 34:15(12)(e), when an employee dies from a non-work-related cause after permanency exams, permanency payments are paid to the decedent’s dependents.

This is supported by the case law of Cureton v. Joma Plumbing & Heating Co. (1962), where the parties both obtained permanency reports with both experts assessing disability.

Scenario 3: Employee dies during the course of authorized treatment due to the work-related incident, and the work accident is the cause of death.

First, we note that a dependency claim can be filed when death is caused directly or indirectly by a work injury, and it does not have to be the sole or primary cause of death.  As long as the work accident is a contributing cause, there can be a valid dependency claim.

Also of note is the statutory time period in which a dependency claim must be filed under NJSA 34:15-51, which states that a claim must be filed within two years of the date of the accident. In a dependency claim, the dependency claim petition must be filed within two years from the date of death.

The compensation to a dependent (once the individual is determined to be a dependent, subject to NJSA 34:15-13(f)) is based on 70% of the employee’s wages at the time of death.

Dependency interrogatories should be served on any individual filing a dependency claim petition, to investigate the nature or the relationship between decedent and potential dependent and to confirm that the individual qualifies as a dependent as defined by Section 13. Employers should obtain a copy of the autopsy report and death certificate. Information should also be obtained regarding decedent’s treating physicians.

Scenario 4: Employee dies after an order approving settlement is entered.

After an employee passes away, the remaining permanency payments are paid to the dependents. Cureton v. Joma Plumbing & Heating Co., referenced above, holds that any permanency benefits that were accrued but not yet paid at the time of death become part of the estate.

But ongoing unaccrued permanency benefits owed to an employee after the date of death are paid to dependents. An individual has no “dependents” until after he has died.

Case study/ example:

Joan gets an award of 15% permanent partial disability on Jan. 1, 2022. The date of last temporary disability benefits was Jan. 1, 2021, so one year of accrued permanency benefits exists. Joan’s accrued permanency benefits are paid over 90 weeks. Joan dies on Jan. 2, 2022, from a non-work-related cause. Who gets the permanency award? The estate gets the portion of the accrued amount for the dates of Jan. 1, 2021, through Jan. 2, 2022. The statutory dependents get the future payments due after Jan. 2, 2022.

To determine potential exposure and the type of benefits that may be owed, and to whom, employers must always keep in mind when and how an employee dies.

Maura Burk is an attorney with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from the New Jersey Workers' Comp Blog.