In Wisconsin the workers compensation death benefit compensates a dependent when a person with a work-related injury dies. If the employee dies as a result of a work-related injury, or when a worker’s comp permanently totally disabled employee dies from any cause, his or her dependents are entitled to a death benefit. If the deceased worker is survived by at least one person who is wholly dependent on him or her for support, the benefit is four times the employee’s average annual earnings (or 200 times the employee’s average weekly wage), subject to the maximum and minimum limitations. See Wis. Stat. Secs. 102.11(1), (2), and 102.46.
If a worker dies while being paid temporary total disability benefits, his dependents may be entitled to permanent partial disability benefits if the percentage of disability can be assessed by a doctor. It may be difficult, but it is certainly worth investigating.
The value of a worker’s compensation death benefit case often turns on whether there is a full or partial dependent according to law. If there is no dependent, it may not be worth pursuing. Generally, a dependent is a person at the time of death who is a spouse, domestic partner under Wis. Stat. Ch. 770, a divorced spouse who has not remarried, a lineal descendant, lineal ancestor, brother, sister, or other member of the family, whether by blood or by adoption, of the deceased employee. Wis. Stat. Sec. 102.51(2)(a). A dependent is not an estate of a dependent.
To receive the full death benefit, a dependent must be a full dependent which the statutes define as (1) spouses or domestic partners under Wis. Stat. ch. 770 who are dependent on the employee spouse with whom they are living at the time of the employee spouse’s death; and (2) children under age 18 (or over age 18 but unable to work because of physical or mental incapacities) who are dependent on the employee parent with whom they are living at the time of the employee parent’s death, if there is no surviving dependent parent. Wis. Stats. Sec. 102.51(1). Living with does not necessarily require under the same roof. If a dependent is not entitled to the presumption of total dependency, he or she may nevertheless establish total dependency showing that he or she completely and totally depends for support on the deceased employee; any other substantial source of support will defeat the dependent’s claim. Partial dependency awards may be limited to the greater of either twice the deceased employee’s average annual earnings or four times the actual contributions by the deceased employee to the dependent in the year preceding the injury.
McCormick Law Office, Milwaukee, Wisconsin.
