It is tragic when a loved one dies from a work-related disease or in an on-the-job accident in North Carolina.  Beyond the emotion loss, the family of a deceased employee frequently faces a severe economic loss.  This is the first of two posts on death claims in NC workers’ comp.  This post will cover when a death is compensable under workers’ compensation in NC and how to file a claim. The second post will cover how the benefits are paid, who receives them and what happens when a worker dies of an unrelated cause while benefits are owed.

When is a Death Compensable under the workers’ compensation in NC?

To be compensable under workers’ compensation in North Carolina, an employee’s death must 1) be related to a compensable injury or disease, and 2) occur within a specified time.

The claimant must prove that the employee’s on-the-job death was related to an injury by accident or occupational disease that is covered by workers’ compensation in NC.  More information about compensable injuries by accident is found here, and occupational diseases here.

The injury or illness does not have to be the sole cause of the death. NC Workers’ Compensation death benefits may be allowed when an injury by accident or occupational disease significantly contributes to the death, even if there are other contributing factors, or when the injury or disease accelerates or aggravates a previously existing condition which then causes the death.  Death that follows from a heart attack may be compensable under NC workers’ comp if the heart attack is due to unusual exertion or extreme conditions or when an accident or occupational disease contributes to or accelerates the heart attack.

When an employee dies as the result of an accident that occurs in the course and scope of the employment the death is presumed to be compensable and workers’ comp benefits may be paid.  This “Pickrell Presumption” applies in NC when the cause of the death is known or when the circumstances of the accident are unexplained.

To be compensable under workers’ comp in NC, the death must occur within the latter of 1) six years from the date of an injury by accident (or onset of disability related to an occupational disease), or 2) two years of a “final determination of disability.”  A “final determination of disability” is an order by the North Carolina Industrial Commission that addresses the injured workers’ disability, such as the approval of a workers’ compensation rating or a settlement agreement.

The workers’ compensation system in NC generally does not allow compensation when the death results from suicide, or an employee’s intentional efforts to injure or kill himself.  However when an employee, as a result of his workplace injury or illness, becomes severely depressed or otherwise loses his or her normal judgment and subsequently commits suicide then benefits may be allowed under NC workers’ comp law.

Notice and Filing Requirements

The deceased worker’s family, estate or next of kin should give notice to the employer within thirty days of a work related death, even if the employer already knows about the death. This is best done by filing a Form 18 Notice of Accident (or Form 18B in the case of lung disease) with the Industrial Commission with a copy to the employer.  A claim for death benefits under the Workers’ Compensation Act is forever barred unless the claim is filed with the Industrial Commission within two years of the date of death.

Employers must give notice to the Industrial Commission within five days of becoming aware of a potentially compensable death by filing a Form 19. Employers are also required to make efforts to identify potential beneficiaries and to file a Form 29 reporting their findings with the Industrial Commission within 45 days.

A claim for death benefits is separate and distinct from the employee’s own claim for workers’ compensation benefits.  So defenses that might defeat the employee’s claim, such as the employee’s failure to timely file his own claim, will not defeat a later arising NC workers’ comp death claim.

The payment of benefits arising from a workers’ compensation death claim in NC should only be made by the employer pursuant to Industrial Commission approval.  When there is a question as to whether a person is entitled to benefits, or as to the respective rights of claimants, then the employer, carrier or administrator, or any person asserting a claim for death benefits, should file a Form 33 with the Industrial Commission to request a determination of that issue.

If you have questions about death claims in NC workers’ comp please call or email for your free consultation with a Board Certified workers’ comp lawyer in NC.

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Top Ten Tips and Traps for North Carolina Workers’ Compensation Claims

After twenty years of practicing workers’ compensation law in North Carolina I have seen just about every mistake an injured worker can make.  These mistakes range from failing to file their claim, to settling when they should not have, and everything in between. Download my Top Ten Tips and Traps for North Carolina Workers’ Compensation Claims

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