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5.20.15 graphic NTL Workers compensation Fatal Accidents. Employees surviving children entitled to receive benefits M0709958xA6406

by: Natalie T. Lorenz

When a work accident leads to an employee’s death, the effects on the employee’s family can be devastating.  Though complex, the Illinois Workers’ Compensation Act (“WCA”) provides financial relief to certain family members of employees who suffered fatal work accidents, including the employees’ children.  The workers’ compensation attorneys at Mathis, Marifian & Richter are here to help explain whether such children may recover, and for how long.

Classes of Survivors

Under the WCA, a deceased employee’s survivors fall within one of four classes:  

(1) widows, widowers, and certain children;

(2) parents totally dependent on the employee’s earnings;

(3) partially dependent parents and children not fitting into the first category who are dependent in any manner on the employee’s earnings; and

(4) grandparents, grandchildren, or collateral heirs 50% or more dependent on the employee’s earnings.

If there are survivors in a higher class, survivors in any lower class are not eligible for benefits.  For example, if an employee’s children survive him, and he also leaves parents who are totally dependent on his earnings, the employee’s children will be the sole beneficiaries.  The parents are not entitled to benefits because there are survivors in a higher class.

As explained below, however, if an employee’s children survive him, there are certain restrictions on their recovery.

Primary Requirement: WCA’s Definition of “Child”

A “child” is defined in the WCA as including not only biological children, but also children who are legally adopted, children whom the deceased employee was legally obligated to support, and children with whom the deceased employee had a special relationship, known in the legal world as being in loco parentis with the child. 

As such, the first step in determining benefits for an employee’s children is to determine whether each child in question fits within the WCA’s definition of “child.”  For example, as to stepchildren of the deceased employee, some analysis will be needed to determine whether the decedent had the special in loco parentis relationship with those stepchildren as described above.  This relationship is more likely to be present if the stepchild’s biological father is not alive, does not pay child support, and/or does not see the stepchild, and the stepchild was totally dependent on the decedent for support.  Another factor may be the time the decedent served as stepparent to the child; if the decedent only recently married the stepchild’s mother, the in loco parentis relationship is less likely to be present.  If an in loco parentis relationship is deemed to exist, then the stepchild could receive benefits as long as the secondary requirements listed below are met.

Secondary Requirement: Age, Incapacity, and Student Status

Once the decedent’s children, as defined in the WCA, are determined, the second step in determining children’s benefits is determining whether they meet certain secondary requirements.  Pursuant to these requirements, a child may receive death benefits if he or she is:

            (a) under 18;

            (b) under 25 and a full-time student; or

            (c) physically or mentally incapacitated, as defined in the WCA.

Furthermore, if the child was under 18 at the time of the death, she is entitled to a benefit for no less than six years, regardless of the other rules.  For example, if a surviving child was 16 when the employee passed, she would be entitled to benefits until she was 22 years old, even if not a full time student and not incapacitated.

As noted above, a surviving child can extend her benefits by enrolling full-time in school; if the child is so enrolled, she is not cut off from benefits at age 18.  She would be entitled to compensation only when actually enrolled in school full-time, however.  Still, an interruption in studies would only suspend the child’s right to benefits, and if she resumes education, the benefits would be reinstated until the child turned 25.

Benefit Amount

The amount of each child’s benefit is determined in fatal cases in much the same way as in regular workers’ compensation cases.  Generally, compensation is received on the same schedule as the deceased employee’s paychecks, but a lump sum may be requested.  The amount is based on the amount of the deceased employee’s usual paychecks, subject to statutory minimums and maximums.  Each child’s benefit is affected by the number of survivors to whom benefits are paid out.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.