Handling WC Death Claims in Illinois

Monday, November 22, 2010 | 0

By Eugene Keefe
Keefe Campbell & Associates

We have received so many questions about it, here are some solid pointers to save for the day an Illinois WC death claim hits your desk.

Note the minimum cost for a WC death claim in Illinois, if there is a widow or dependent, is more than $600,000 and claims costs on top of medical care can be more than $1.6 million. Such claims are always very serious. Please also remember if you innocently pay the wrong person(s), you can’t ask the Illinois Workers' Compensation Commission for a refund; you have to sue the wrong person you paid in Circuit Court and also simultaneously pay the right claimant(s)—it is critically important to rapidly confirm you have identified the proper claimants. If you are unsure of a claimant’s rights, even if they don’t have a lawyer, you may need to get in front of an arbitrator on an urgent basis to avoid any claim for penalties/fees. The arbitrator will conduct what is called a “death prove-up” to legally define everyone’s rights and duties. If you need help further understanding this process, send a reply.

Please also note death claims in Illinois can some times be lumped out, if the arbitrator and/or commission feel it is in the best interest of all parties. The main reason is the fact all claimants have to keep living and benefits can be lost if they pass away themselves. Please also note a solid risk manager dealing with the death of a worker at your workplace should take whatever steps are needed to keep such issues out of litigation. In an undisputed Illinois WC death claim where benefits are properly paid, our Act only allows for a $100 fee for claimant’s counsel. If there is a dispute, the fees are limited to 20% of seven years of benefits, which can still be a lot of money. If you need assistance with undisputed death claim handling, let us know and we will assist in every way possible.

As a side note, please also remember if a worker passes away at your workplace in front of other workers, anyone who heard or
“experienced” the passing may have a potential workers’ compensation claim under the Pathfinder v. IWCC ruling. Therefore, if a co-worker seeks your assistance in dealing with the stress involved in the passing of decedent, get it for them if at all possible. We consider it penny-wise and pound-foolish to ignore calls for help in such a situation and possibly end up in unnecessary litigation.

Going back to managing an Illinois WC death claim; first, fully investigate the passing of the worker. The main goal is to determine
compensability.

Always confirm it is an Illinois loss vs. another state or feds—follow traditional subject matter jurisdiction analysis of:

A. Site of accident;
B. Site of hiring;
C. Where work was localized or centered;

Are there any defenses to the accident? Use traditional analyses of all accident factorsis the event bona fide? Could it have been a suicide?

Are there any investigative red flags about the occurrence? Did you remember to pull all your surveillance videos of the area? We are telling all of our clients to get webcam interviews of all witnesses—if you want to review our webcam questions, send a reply.

Next, analyze:

A. Arising out of;
B. In the course of.

As part of the investigation, obtain the autopsy, if performed. Be sure to preserve the scene of the accident to the extent possible for scientific analysis. Remember, if you destroy evidence that might be used in a third party claim, you can be sued for doing so.

For compensability and/or causal connection issues on heart attacks, strokes, suicides, drug use and other unusual situations, we are happy to provide research and counsel at no cost.

After investigation of the accident, then seek needed documentation in this and every major WC claim. Confirm the fact of death — you need a county and not religious death certificate. Also use the personnel file and any other available information, including the web to locate and identify all possible spouses and dependents. You will need marriage certificates and birth certificates for all claimants.

You need to confirm the marriage was valid to the extent possible. Please also remember common law/same-sex marriage will certainly cause litigation and confusion in an Illinois death claim; if you have to deal with one, the best path is to seek out an arbitrator to learn their view of any controversy. If claimant was in the process of being divorced, you need to ascertain whether a valid divorce might have been entered.

Having confirmed compensability and parties; next determine the weekly death benefit from which all parties will be paid—you only owe the weekly benefit once every week; the surviving claimants have to share whatever is owed. If they disagree, again an Arbitrator will work it out.

Illinois’ maximum death benefit today is $1,243 a week. An Illinois death claim doesn’t hit the max until a decedent is making more than $1,864.50 a week or $96,954 a year. Illinois minimum death benefit today is $466.13 which applies if decedent was making $20 or $200 per week. The minimum weekly death benefit “ends” or does not apply when a decedent was making $699.20 a week or more.

The widow or widower receives weekly death benefits for 25 years, if they survive that long. Children of decedent are eligible to share in the death benefit until 18. When they become adults at 18, they may continue to share the death benefit until 25 if in a school of higher learning. Children are defined as “DNA kids” or natural children of decedent. Adopted children also take. “In loco parentis” children may take under special circumstances.Parents and other family members are eligible for death benefits in relation to dependency—proving dependency is both necessary and complex in death claims.

What if there is no spouse or children or other claimants? You only have to pay burial expense. Burial expense is potentially controversial. It is $4,200 for a death prior to Feb. 1, 2006 and $8,000 thereafter. But what if decedent isn’t buried but is cremated at a cost of $2,000? Is $8,000 still owed? Does that make sense to anyone other than a plaintiff/petitioner attorney?

What do you do about life insurance offered by the company—can it be used in lieu of WC benefits? This is a very complex question and we are happy to outline case law and answers in the appropriate claim.

If you have other questions or concerns, please reply or call and we are happy to assist as needed.

<i>Eugene Keefe is a founding partner of Keefe, Campbell & Associates, a Chicago workers' compensation defense firm. This column was reprinted with his permission from his firm's client newsletter.</i>