Death Benefits for the Dependents of Public Safety Members Where the Occupational Disease was the Cause of Death in Labor & Employment §9-503 Cases

Name: Berman | Sobin | Gross LLP
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I. Determining Dependency
- a. Who may be dependent and when the determination is made.
  
  In general, a dependency determination is established through proof of financial support to the individual seeking the determination. The determination is made both on the date of disablement and the date of death². If an individual is not dependent on the date of disablement, but becomes dependent as of the time of death, the individual is not dependent. The one exception exists where a child who was not yet born at the time of the initial disability but is born thereafter, out of a marriage existing at the beginning of the disability, and is dependent at the time of death.³ Assuming the child meets the other requirements for dependency, discussed in detail below, the child would be eligible for dependency benefits. The surviving spouse is not entitled to dependency benefits if 1) the surviving spouse deserts the covered employee for more than 1 year before the time of the date of disablement; 2) the surviving spouse deserts the covered employee at any time after the time of the occurrence of the date of disablement; or 3) the surviving spouse and the covered employee (i) were married after the time of the occurrence of the disablement and (ii) do not have any dependent children.⁴
- b. Total v. Partial Dependency
  
  Once the determination is made, there must be a finding of total or partial dependency.⁵ Total dependency exists when the individual relies entirely on the earnings of the deceased. Temporary gratuitous assistance or minor considerations from others do not prevent a determination of full dependency.⁶ A legal or moral obligation to provide support in the absence of actual support does not create dependency.⁷ A finding of total dependency does not require destitution; the receipt of financial assistance from other sources which do not substantially affect or modify their status does not disqualify an individual from a finding of total dependency.⁸ Dependency determinations must be made on the particular facts of each case, including the relative contribution by the individual to the household income and consideration of the dependent’s standard of living.⁹

This article applies to claims where the employer/insurer has not made an election under Labor & Employment §9-683.6.
Labor & Employment §9-679.
Labor & Employment §9-680(c).
Labor & Employment §9-680(b).
Despite no case law being directly on point, the logic from the collective “death benefit statutes” indicates that the type of dependency determined on the date of disablement cannot be improved later in time, i.e., if partial dependency is determined on the date of disablement, even if the individual is totally dependent on the decedent at the time of death, the dependent would only be entitled to partial dependency benefits. See Clifford B. Sobin, Maryland Workers’ Compensation (2018-2019 ed.)
Larkin v. Smith, 183 Md. 274 (1944).
Havre De Grace Fireworks Co. v. Howe, 206 Md. 158 (1955).
Superior Builder, Inc. v. Brown, 208 Md. 539 (1956).
Martin v. Beverage Capital Corp., 353 Md. 388 (1999).

II. Benefits Paid

Total dependency benefits are paid to a wholly dependent spouse so long as the individual remains wholly dependent.¹⁰ A second determination of total dependency is made once $45,000 has been paid by the employer/insurer. If the spouse becomes wholly self-supporting before $45,000 is paid then the spouse will continue to receive benefits until the $45,000 is paid. If the surviving spouse remarries thereafter, payment stops even if the $45,000 has not been paid unless the surviving spouse does not have dependent children, in which case the spouse is entitled to receive payments for 2 years from the date of remarriage.¹¹ Totally dependent children receive benefits so long as they remain totally dependent. The benefits shall continue to $45,000 even if partially or wholly self-supporting. Totally dependent minor children are eligible for benefits until age 18 unless they remain totally dependent and incapable of self-support due to physical, mental, or other sufficient reason determined by the Workers’ Compensation Commission. Benefits shall continue for up to 5 years after age 18 if they attend school full time with an educational or vocational program accredited or approved by the State Department of Education. Benefits for wholly dependent individuals that are not a spouse or a child are capped at $45,000.

Partial dependency benefits are paid where there are no wholly dependent individuals; or if the partial dependent is a spouse whose status changed from wholly to partially dependent after the death of the decedent.¹² Partial dependency benefits are paid as long as the individual is partially dependent, not to exceed $75,000. The $75,000 cap applies to all claims filed after September 1, 2007.

The weekly rate of compensation for both partial and total dependency is the maximum rate of two-thirds of the average weekly wage of the decedent, not to exceed two-thirds of the state average weekly wage. Where multiple dependents exist, each dependent receives a percentage of the total dollar amount proportionally representative to the decedent’s average weekly wage.
III. Applying Labor & Employment §9-503(e)(2) to Dependency Benefits.

The application of the §9-503 offset provision is applied to total dependency benefits just as it would against the workers’ compensation benefits received by a living claimant under any §9-503 claim. The combined dollar amount of retirement or pension benefits and workers’ compensation benefits cannot exceed the wages earned at the time of retirement. In practice however, the application is more complicated in the partial dependency context. First, regardless of the type of dependency, the practitioner must be cognizant of the election made by the decedent for retirement benefits. Given that the offset provision is temporally sensitive, if the decedent elected not to provide any retirement benefits to his/her spouse after death, then no offset would apply to the dependency benefits because no funds are being received by the dependent to activate the offset. However, if a surviving spouse received 50% of decedent’s pension, that amount must be annualized and subtracted from the decedent’s average weekly wage to determine the dollar amount of the weekly benefit to be paid.

For partial dependency benefits, the author takes the position that where an offset is present, and is not a total offset, the maximum benefit of $75,000 must still be paid in full so long as the individual remains partially dependent for the time period required to receive the total amount. The offset of benefits would simply prolong the time it will take for the dependent to receive the total amount as the weekly rate of compensation would be reduced by the offset. For example, if the weekly dependency rate is $1,000 without an offset, thereby taking 75 weeks for the entire partial dependency award to be paid out, once a $500 pension offset is applied per §9-503, the weekly reduction would cause the award to take 150 weeks to pay out entirely, however, the $75,000 would still be paid.